We live in an era of hyper-specialization. Professionals across a
spectrum of fields focus on mastering and practicing in narrow
subspecialties. (1) This is hardly a surprise. As the scale of knowledge
grows, it becomes increasingly difficult for any one person to stay on
top of details and developments across a field, and specialization
represents something of a natural division of labor. Law is no
exception. (2) Bar associations have large numbers of sections to serve
the needs and interests of lawyers who practice within narrow fields,
(3) and large law firm websites commonly tout the specialized knowledge
of their practice groups and individual lawyers.

Courts, too, have become specialized. (4) The federal judiciary
features, for example, the Federal circuit, bankruptcy courts, and tax
courts. At the state level, there are the Delaware Chancery Court and
the Texas and Oklahoma Courts of Criminal Appeals, as well as family
courts, drug courts, and probate courts. Indeed, Judge Posner has
suggested that if (or when) the federal caseload becomes too great,
"the federal judiciary will perforce switch to the European model
of specialized courts. For specialization enables an indefinite increase
in caseload to be more or less effortlessly accommodated...." (5)
Yet, despite the larger trend toward specialization, the iconic American
judge remains a generalist. She sits on a court of general jurisdiction
and adjudicates whatever disputes happen to come before her.

In recent years, however, there has been something of a backlash
against the increasing division of intellectual labor. Dr. Jerome
Groopman, for example, has suggested that "[s]pecialization in
medicine confers a false sense of certainty." (6) Specialists, he
argues, are just as susceptible to cognitive biases as nonspecialists,
yet are overconfident in their diagnoses. (7) Across an array of fields,
critics contend that increasing specialization has left us with
practitioners who too often fail to appreciate the big picture, and who
cannot adequately integrate their narrow perspective concerning a
situation into the larger framework necessary to generate optimal
solutions. (8) In light of this, it seems appropriate to reconsider the
virtues of the generalist judiciary, an institution that, viewed against
the backdrop of our increasingly specialized society, might seem to be
something of an anachronism.

There already exists a relatively large body of literature
outlining proposals for specialized courts and otherwise considering
their perceived virtues. (9) I seek in this Article to engage this
literature in two ways. First, I hope to demonstrate that the question
of specialization is much more complex and contingent than most previous
discussions have allowed. (10) The question is never just whether
specialists will outperform generalists in some abstract sense--it
instead requires consideration of an array of factors, such as the
nature of the field of specialization, the institutional context in
which specialization is to be implemented, and so on. There are also
questions, distinct from any differences in the substantive results
achieved via the two types of courts, about whether the two types of
regimes are likely to differ in the extent to which they advance
rule-of-law values. The goal of this analysis is to work away from,
rather than toward, confident conclusions. Many of the questions
involved are ultimately empirical in nature, and all will require
comprehensive study. I offer intentionally speculative hypotheses about
potential differences between specialists and generalists, with the hope
that what results can serve as a catalog of factors to be considered in
efforts to develop specialized courts and an agenda for future scholarly
efforts.

Second, I examine in greater detail one of the primary claims made
in favor of specialized courts and judges, namely that they facilitate
expert decision-making for the simple reason that judges on specialized
courts will be (or will become) experts in the subject matter within the
court's jurisdiction. Those making the case for specialization in
the past have suggested, without much elaboration, that because of their
expertise specialized judges will make better decisions, with
"better" left largely undefined. I draw on research into the
psychology of expertise to explore whether specialized courts and judges
really can be expected to generate better decisions, and conclude that
the case for expertise is overstated. Simply put, specialized judges
will almost always have a claim to expertise in the weak sense that they
will be more efficient in reaching conclusions than non-experts. These
efficiency gains can be substantial, and they may sometimes be of
dispositive weight in a world of rising caseloads. But, it is unlikely
to be the case that the content of specialists' decisions will
differ in some qualitative respect from--or be in some general sense
"better than"--those of their generalist counterparts. At the
same time, there may be process aspects of specialists'
decision-making that should give us pause, and that must be balanced
against the efficiencies gained through specialization.

The remainder of this Article proceeds as follows. Part I outlines
some of the initial definitional difficulties embedded in discussions of
judicial specialization, and briefly reviews the primary arguments
offered for and against specialization. Part II offers an assessment of
the specialization debate that is designed to enlarge both the breadth
and depth of the inquiry. Part Ill surveys psychological research on
expertise, with an eye toward gleaning its insights relevant to judging.
Part IV synthesizes the work of the preceding two parts, drawing on both
to further refine the analysis while introducing the suggestion that the
choice between specialization and generalism is likely to have
rule-of-law consequences.

I. An Overview of the Debate

A. The Scope (and Slipperiness) of the Inquiry

An initial difficulty with assessing the merits of judicial
specialization is that there is no ideal type of specialized (or, for
that matter, generalist (11)) court. (12) It is relatively easy to take
a rough cut at defining generalist courts: those with judges who have no
designated subject-matter specialization (whether as a product of a
jurisdictional limitation or otherwise), and who must accordingly hear
and decide cases presenting virtually any legal issue. (13)
Specialization, in contrast, involves a host of variables. Courts might
be specialized in accordance with traditional boundaries between legal
subject matters, such as tax law, or in accordance with features of the
cases they hear that are not strictly legal, as might be the case with
courts designed to hear cases involving scientific or business matters.
(14) Specialization could likewise occur at varying breadths. one could
imagine courts designed to hear, for example, only private law, or tort,
or personal injury cases. It hardly seems farfetched to imagine that
each of these variations would have differing effects on judges,
processes, and outcomes. The nature of the bar that appears before the
court seems likely to matter as well. The specialized court that hears
cases primarily or exclusively through a specialized bar will be
different from its counterparts that confront a generalist bar or a
significant number of pro se litigants. The advocates play an important
role in framing disputes and providing the raw materials of decision,
and changes in the manner in which those inputs are provided will almost
certainly manifest themselves in a court's output. A final evident
variable is whether the court at issue is a trial or appellate court.
Because of their different roles and orientations toward the
dispute--trial courts will be relatively more focused on facts,
appellate courts on law--it is easy to anticipate that specialization
raises different concerns and would have different consequences in the
two contexts. In all, careful consideration reveals that the question of
what is at stake in the choice between generalism and specialization is
more complex and contingent than previous analyses tend to recognize.

The concept of expertise is likewise slippery when applied to the
judiciary. Although commentators tend to employ the terms
"expert" and "expertise" as though their meanings
are self-evident, (15) their casualness masks considerable uncertainty
and complexity. Some writers have suggested that the relevant expertise
pertains to the process of judging itself, such that what is implicated,
by its nature, is some relatively general skill. (16) It may exist in
slightly different forms as between trial and appellate judges, but on
this view, the expertise is trans-substantive. (17) Another approach
regards judicial expertise as subject-matter specific, such that a judge
might be viewed as an expert in, say, criminal law but not tax. one
might also adopt a hybrid approach that conceives of judicial expertise
as multi-dimensional.

Regardless of how one conceives of expertise, additional questions
follow. Does "expertise" denote what is merely a relative
status, or is there some qualitative difference that separates experts
from all varieties of novice? If expertise is subject specific, how far
does a given expert's reach extend? How does one become an expert?
Is experience the key, or is it largely a product of innate skills? If
the former, and given the lack of any formal judicial training in the
United States, is it experience as a lawyer that makes one an expert, or
is it necessary to have experience as a judge? In theory, at least, most
of these questions could be assessed empirically. Yet, assessing the
quality of a judicial decision, and thus measuring many of the
dimensions and effects of expertise, involves both practical and
theoretical difficulties that counsel in favor of tentative, incremental
assessment. (18)

As all this suggests, the concepts in play are elusive, and a wide
range of variables will impact the performance of judges and judicial
systems. (19) A comprehensive taxonomy, while theoretically possible to
develop, would make for cumbersome analysis. Some simplification is thus
in order. The discussion that follows, for the most part, will use the
terms generalist and specialist in the informal sense in which they are
typically used. That is, generalist will refer to the prototypical
American judge who sits on a court of general jurisdiction, while
references to specialized courts will contemplate those devoted to
adjudicating some narrower segment of cases, defined by legal or factual
subject matter. The analysis will focus on probing the nature and
components of judicial expertise and their implications for the nature
of judicial decision-making, all while attempting to remain agnostic on
the question of which regime will generate better decisions.

B. The Arguments for Specialized Adjudication

Broadly speaking, there are two types of arguments made in support
of specialized adjudication. The first stems from the perceived
expertise that specialized judges will bring to their task. Here, the
claim is that specialists will make decisions that are in some
qualitative and categorical sense better than those made by generalists.
The second involves efficiencies arising primarily from
specialists' familiarity with the factual or legal contexts in
which the cases before them arise. This argument does not depend on
specialized judges having any unique insights. The suggestion instead is
that specialists will be able to resolve cases more quickly because they
will start each case with a higher baseline of pertinent background
knowledge.

1. Expertise-based Arguments

The expertise-based argument for specialization proceeds largely on
the assumption that the complexity of the law generates the need for
specialization. As Judge Henry Friendly put the matter more than three
decades ago, this argument turns on whether the concepts embodied within
the applicable law "are readily within the reach of any competent
lawyer." (20) The complexity may be apparent on the surface of a
statutory scheme, or may involve deeper difficulties in determining how
a particular case fits within the doctrinal and policy contours of the
applicable body of law. (21) Either way, the clear suggestion is that
the specialist possesses a perspective that is inaccessible to the
generalist, and that the specialist will accordingly reach better
results in individual cases. (22) As one commentator has recently put
it:

Obsession with the generalist deprives the federal judiciary of
potential expertise, which could be extremely useful in cases
involving complex doctrines and specialized knowledge.... [E]ven if
expert judges cannot necessarily ensure right answers, their
decisions are more likely to fall within the subset of better
answers owing to their greater experience and understanding of a
field. (23)

Commentary making the case for specialization tends not to linger
over the precise nature of the likely differences between the decisions
of generalists and specialists, or to ponder approaches to measuring
their relative quality.

A related but distinct argument in favor of specialization is that
specialized courts will generate law that is more authoritative. In
part, this draws upon the same depth of understanding believed to
underlie the capacity for better decision making in resolving individual
cases. That is, the specialist's greater understanding of the
larger legal landscape applicable to a dispute will enable her to
generate better law in resolving that dispute. (24) Although here again
the precise qualitative metric tends to remain undeveloped, commentators
have suggested that specialists will generate law that is more uniform
and predictable. (25) That, in turn, will enable those who must comply
with the law to structure their affairs accordingly, (26) and will
facilitate the settlement of the disputes that do arise. (27) On top of
all this, a specialized court will be better positioned "to
understand when it is better to sacrifice accuracy (the
'right' result in every case) for the ease with which
bright-line rules can be applied and how to draw the fine distinctions
necessary when accuracy is more important than administrative
convenience." (28) In short, the suggestion is that the specialist
will possess a more comprehensive understanding of the complex legal
machinery governing a subject, and will consequently be better able to
tinker with that machinery in ways that will improve its performance.

There is also another variety of expertise-based argument. This
argument depends less on the complexity of the applicable law and more
on the complexity of the factual situations to which judicial expertise
must be applied. Proposals for science and, to a lesser degree, business
courts proceed from the understanding that the relevant complexity
resides in factual settings rather than doctrinal complexity. (29) Yet
the case for specialization remains the same--"expert" judges
will be able to reach better decisions and generate better law because
of their superior understanding of one of the key adjudicative inputs.
The suggestion, here again, is that expertise will facilitate decision
making in contexts that are beyond the capacity of generalists to
understand.

2. Efficiency-based Arguments

Efficiency-based arguments for judicial specialization do not
depend on the existence of qualitative differences between the outputs
of specialist versus generalist courts. Instead, the claim is that
specialized courts, because of their familiarity with the relevant legal
or factual framework, will reach decisions more expeditiously. Put
somewhat differently, while generalists courts could achieve the same
level of quality as specialized courts, doing so would require an
additional investment of time that might be unwise or impracticable
given institutional constraints. (30)

Consistent with this rationale, some specialized courts are largely
the product of overwhelmed dockets. The rationale for drug (and other
problem-solving) courts may be partly rooted in the sense that there is
something unique about the judicial role in the types of cases involved,
but such courts owe their existence in part to the overwhelming volume
of drug cases. (31) one can tell a similar story about probate and
bankruptcy courts, which to a great degree involve the processing of
large numbers of largely uncontested, routine matters. (32)

There are also efficiency arguments that operate on an
institutional level. For example, many commentators have suggested that
there is a ceiling on the number of judges an appellate court can have
while remaining functional. (33) When this ceiling is reached,
specialization is necessary not as a result of any expertise-based
gains, but simply because a system that does not allocate at least some
of its cases by channeling them to specialized courts cannot function.
(34) A court that has grown too large will find it difficult to
coordinate its decision-making and otherwise keep abreast of itself.
Further, the judges, unable to deliberate in a meaningful fashion, will
start to act more like members of a legislative body. (35) Judge Posner
has suggested that these factors make a trend toward specialization
inevitable. (36)

C. The Arguments Against Specialized Adjudication

The case against specialized courts and judges has four main
components, which include: the potential for insularity; the prospect
that specialized courts will have, in general, inferior judges; the
suggestion that arguments based on expertise do not apply to the
judicial role, at least in some contexts; and a concern over boundary
and other administrative problems that will often arise in the wake of a
separation of some portion of cases from the broader judicial system. As
is the case with arguments in favor of specialization, many of these
arguments overlap with one another.

1. The Potential for Insularity

The concern over insularity arises from the potential for judges on
a specialized court, cut off from the broader legal world, to lack the
ability to gauge when doctrine has fallen out of step. (37) At the same
time, because the areas of law most likely to be given over to
specialized courts will be technical in nature, the public and the bulk
of the bar are unlikely to monitor these courts' output closely.
(38) The likely result is a bench and bar whose understandings are apt
to be self-reinforcing--who are less inclined to question shared
premises, more likely to develop an internal and potentially
impenetrable language, and otherwise generally disposed to facilitate
the evolution of their institution in such a way as to move it away from
the mainstream. (39) For example, it may be that those who practice in a
certain specialty are unified with respect to how governing statutes are
to be interpreted, and follow that approach to its logical conclusion
while the rest of the legal world experiments with a variety of
approaches. (40) This institutional seclusion leads to further
pathologies. Not only is the possibility for cross-pollination across
areas of law reduced, (41) but so are the chances for percolation of
theories and approaches that occur through their consideration by a
range of different courts. (42) This lack of access to competing
perspectives, in turn, increases the likelihood that the specialized
court will generate suboptimal law even apart from the effects of
insularity on the lawmaking process by depriving it of bases on which to
reconsider prior decisions.

The dynamic extends beyond the lawmaking process. The specialized
judiciary is likely to go about the process of finding adjudicative
facts differently from a generalist judiciary, because the specialized
judiciary will bring differing background understandings to the task.
(43) It may not be possible to generalize about precisely how these
differences will play out. To the extent that specialists within a given
area share certain features in their backgrounds, their adjudicative
factfinding might exhibit a broad consistency that would be lacking from
generalists. Some features of consistently present fact patterns are
likely to be ignored as familiar and irrelevant by those habituated to
the patterns, while the non-specialist looking at the situation with
"fresh eyes" might regard such a feature as significant. On
the other hand, the existence of competing "camps" (44) within
a specialty introduces the possibility of greater volatility, although
it would likely be a more predictable, consistent volatility when
contrasted with the perhaps more random volatility of a generalist
court. (45) Some specialists would regard a specific situational feature
as critical, while others would view it as insignificant or significant
in a different way.

There is likely to be another difference between specialists and
generalists in terms of the process of adjudicative factfinding. As
developed below, (46) the specialist is likely to undertake such
factfinding at a greater level of particularity. Because of her exposure
to a larger number of similar situations in the past, she is likely to
regard more of the features of the present situation as potentially
significant inputs to the just resolution of the dispute. (47) If the
features that the specialist regards as significant are different from
those identified in the governing legal rules--if, for example, the
specialist finds ten features of a given situation significant to the
process of deciding a case, in an instance where the applicable rule of
law suggests that decisions will turn on three factors--this, too, could
lead to a divergence between specialist and generalist regimes.

2. The Potential Inferiority of Specialists

The suggestion that judges on specialized courts will be inferior
to their generalist counterparts has two strands. The first has to do
with the perceived prestige of a position on a specialized court. As
discussions concerning the potential expansion of the federal judiciary
have underscored, prestige is an important part of what makes a judicial
position attractive. (48) Several commentators have suggested that
specialized judgeships are apt to be regarded as less desirable based on
the repetitive nature of the cases likely to make up the court's
docket (49) and the related likelihood that positions on specialized
courts will be regarded as less prestigious than those on generalist
courts. (50) As a consequence, the pool of potential judges for such a
court will not include the most talented lawyers, and thus the talent
level on any given specialized judiciary will be less than that of the
generalist judiciary. one might continue this critique by suggesting
that the nature of the job will exacerbate the problem. Being faced with
a continuing stream of cases involving the same subject matter and
roughly the same sorts of problems might more readily lead to
desensitization. In this view, specialized judges will come to view a
greater fraction of the cases before them as routine, compared with
their generalist counterparts. Because we all tend to engage less deeply
with that we regard as routine, (51) the argument would run, specialists
will give a greater portion of their docket less than an ideal amount of
attention. In sum, the limited nature of specialized courts'
caseload might make the positions less desirable at the outset, and
beget a comparatively lower level of performance from judges once they
are on the bench.

The second component of the argument focuses on the selection
process. Here, the suggestion is that most members of the bar and
general public are unlikely to pay great attention to a specialized
court, which in turn produces a greater opportunity and incentive for
repeat players to influence the selection process in such a way as to
facilitate the creation of a court filled with judges who will rule in
their preferred way. (52) When the government is one of the interest
groups, there also arises the potential for a less effective separation
of powers because specialist judges might be more likely to identify
with the governmental interest when a government program is at stake.
The rationale for this proposition is that the existence of the program
is likely central to their career in a way that will not be true for
generalist judges with respect to most of the matters that come before
them. (53) Both of these effects might be enhanced by geography, in that
specialized courts--particularly at the appellate level--are likely to
be located at the seat of government. (54) These geographical
differences can affect personnel. In other words, the appointees to a
court located in a capital may differ in material ways from those to a
court located elsewhere, and the presence of a court in a capital city
might affect the worldview of those who must move there to accept an
appointment. (55) Specialization will likely result in more geographic
homogeneity as well, since the lawyers who possess the requisite
specialization will tend to come from an urban practice, and often a
particular sort of practice. (56)

3. Skepticism Concerning the Value of Expertise in Law

The third critique of specialization calls into question the notion
that expertise is a meaningful concept in the context of a specialized
judiciary. one version of this critique proceeds from skepticism
regarding whether there is such a thing as expertise in law, or at least
some areas of law. The suggestion is that legal reasoning has a core
ideological component, coupled with the observation that the notions of
expertise and specialization do not seem to apply to ideology. (57) As
Judge Posner puts the point:

We think of a specialist not just as someone who knows a lot about
a subject, but as someone to whom we are willing to entrust
important decisions about it that affect us. This willingness
depends on a belief that the specialist is objective, in the sense
that his judgment is independent of personal values that we may not
share, and that is not a sense that most people have about experts
in constitutional law. (58)

Put differently, if expertise in law consists of the ability to
fashion better arguments in favor of results that are ultimately a
product of ideology rather than the ability to reason toward objectively
better results, then the gains from expertise are, at best, illusory.

On this view, not only is the concept of subject-matter expertise
suspect, but the fact that it is really ideology at work exacerbates the
potential for interest groups to capture a court through manipulation of
the selection process in such a way as to lead to the selection of their
ideologically preferred candidates. (59) Of course, many of the
commentators pressing this critique recognize that not all fields of law
are created equally when it comes to the extent of underlying
ideological conflicts. In areas where there is consensus on the premises
underlying and policy goals driving the law, there is perhaps more room
for objective expertise to develop, and thus for the implementation of
specialization.60 The relative maturity of a field will also matter.
There may be greater variance between specialized and generalist courts
(measured by the manner in which they resolve disputes and the legal
standards they develop for doing so) in emerging fields of law than in
established fields of law.

A different strand of this critique acknowledges the existence of
judicial expertise, but contends that it is trans-substantive and
operates at a more general level. Judge Friendly argued that "[t]he
process is more important than the subject matter; and the judge can lay
claim to being a specialist in that." (61) The idea here is that
the relevant expertise exists with respect to law and legal analysis in
a broad sense, and is based on the implicit understanding that there is
a commonality to law and legal standards. The essence of this view was
colorfully captured by Justice Holmes: "I have long said there is
no such thing as a hard case. I am frightened weekly but always when you
walk up to the lion and lay hold the hide comes off and the same old
donkey of a question of law is underneath." (62) The generalist,
perhaps, has the virtue of being able to cut through the seeming
uniqueness of any given new situation to reach the conclusion that what
it presents is ultimately just another variation on a familiar theme.

4. Boundary Problems

The fourth critique of specialization concerns the phenomenon of
boundary problems. The creation of courts whose jurisdiction is limited
by subject matter requires the drawing of lines to distinguish cases
falling within the court's jurisdiction from those that do not.
Further difficulties arise because disputes as they arise in the world,
and as they present themselves to the legal system, do not regularly
conform to the lines of division that might exist within an
institutional structure. (63) This creates not only potential
administrative difficulties, but also the possibility that specialized
courts will develop their own, divergent body of case law with respect
to issues that arise with some regularity in cases coming before a
specialized court, but that are formally outside the court's area
of specialization. (64)

5. A Fifth Approach: Emphasizing the Virtues of Generalism

Another way to approach the comparison, which has largely remained
only implicit in the literature, is to focus on the perceived virtues of
generalist courts. Many of these are simply the converse of the
critiques of specialization just described. For example, if specialists
are susceptible to insularity and selection pressures, then the mere
absence of those can be regarded as a virtue of generalists. But there
are also affirmative virtues that arguably result. The generalist seems
much more likely to be, in Isaiah Berlin's famous typology, a fox
(someone who knows many things) rather than a hedgehog (someone who
knows one big thing). (65) She will bring a greater array of
perspectives and cognitive tools to any given question. If one accepts
the proposition that law--perhaps especially statutory law--reflects a
variety of competing and often conflicting aims, (66) then the
generalist stands as more likely to be sensitive to and take account of
these divergent ends.

This approach in turn raises the question of what the notion of
expertise might mean in the judicial context. The specialist's
knowledge will be comparatively narrow and deep, and the
generalist' s knowledge broad and shallow. The specialist will have
a deeper appreciation for how a given case fits within the constrained
universe of her specialty (in terms of both its legal and factual
contexts), (67) while the generalist will have a greater appreciation
for how a given case fits within the larger framework of the law, and
how it may be similar in important respects to legal approaches outside
the specific legal subject area in which it arises. Although most
discussions of judicial expertise casually assume that true expertise
requires the specialist's depth, (68) that assumption depends on a
certain conception of the role of law that is not inevitable. Indeed, as
developed below, (69) if one accepts the proposition that law should be
something of a common language, (70) then it may be that judicial
expertise can exist only at a broad level. on that view, the key is not
expertise in, or familiarity with the particulars of, say, tax law, that
matters, but rather an advanced ability to deploy the tools of legal
analysis.

II. An Assessment of the Debate

Although the outline sketched in the preceding Part is somewhat
truncated, it accurately captures the depth of the debate over the
virtues of specialization. Intuitive judgments abound. (71) Yet, as the
discussion reveals, there are tensions among some of the arguments, and
conditions and qualifications to be assigned. For example, the
suggestion that specialized courts are likely to foster a variety of
groupthink (72)--members of the bench and bar will argue from shared
premises--stands in tension with the suggestion that specialized courts
will be hotbeds of competing factions susceptible to wild swings in
approach as the power of the factions wax and wane. (73) Both stories
read as plausible accounts, and one can even imagine a world in which
both are at least partially true, though it seems unlikely that both
would be accurate with respect to all specialized courts. Another
example: the argument about the potential for capture of specialized
courts at the selection stage suggests that specialized courts will tend
to be less independent than generalist courts. (74) Yet Martin Shapiro
suggests that specialization will foster the appearance of judicial
independence, at least in public law cases, on the grounds that a member
of a specialized judiciary is less likely to appear closely allied with
the arm of government with whom a litigant is engaged in a dispute. (75)

A further problem arises out of the fact that it remains difficult
to assess the quality of judicial output, which in turn makes it
challenging to provide concrete support for arguments that one approach
to institutional design is superior to another. As noted above, to some
degree this difficulty stems from the ideological content of many areas
of law, such that assessments of quality are to a large degree in the
eye of the beholder. (76) The more general problem of legal
indeterminacy contributes to the problem as well. (77) Legal rules, in a
manner that is independent of ideology, can often be interpreted in
multiple ways, with none of the possible interpretations being clearly
the correct one. (78) And there is, on top of all this, a measurement
problem. Even assuming the ultimate existence of a correct answer to any
moderately complex legal problem, efforts to assess whether a given
decision has reached that answer requires deep knowledge of both the
applicable law and the particular facts and circumstances of the case
involved. This requires, at a minimum, fully understanding the facts,
the parties' arguments, and the governing legal materials. Thus, it
requires an assessment process involving as much effort as the
court's decisional process.

Movement beyond assessment of individual cases to a focus on the
output of a court in more general terms presents even more difficulties.
The decision in a specific case can at least be measured by the fit
between the result reached and the set of potential results allowed for
under applicable legal standards. Reviewing the collective output of a
court, in contrast, might entail not only some effort to assess the
quality of its decisions in individual cases--which, given the
resource-intensive nature of the process as just described, requires
resort to proxies in order to be practicable--but also monitoring for
larger trends in the way in which cases are resolved. over time, a court
might change the content of the law or, less obviously, alter the
results it reaches by shifting emphasis in the way standards are
implemented. The desirability of such shifts, too, is the sort of thing
that lies in the eye of the beholder. And lying behind all of these
potentially intertwined effects are questions about causal factors. As
Dreyfuss puts it:

[E]ven if one is comfortable examining the court's work and can
comment with confidence on the ways in which the court has altered
the law, there remains the problem of deciding whether the observed
changes occurred because of the court's expertise, experience and
deep appreciation of the issues at stake, or because it has been
captured by special interests, or has succumbed to another one of
the problems outlined above. (79)

It would thus be difficult to assess the effects of specialization
even were one to engage in a comprehensive, retrospective analysis of
decisions. Questions of institutional design, of course, require
prospective forecasting of effects, which introduces additional
complexity. Predicting the relative impacts of specialization versus
generalism, then, is necessarily a speculative and contingent matter.
The remainder of this Part thus represents an effort primarily at
outlining hypotheses for how the choice between the two regimes might
manifest itself in the output of the courts. Doing so necessarily
involves addressing issues that are ultimately either normative or
empirical in nature, and that accordingly cannot be conclusively
addressed at this stage. The point of the discussion that follows is not
to achieve resolution, but rather to explore the dynamics of the choice
at a deeper level and to demonstrate the complexities involved.

The task must begin with recognition of the purposes that courts
exist to serve. One of the shortcomings of the existing literature is
that it tends to speak to questions of generalization versus
specialization without adequate sensitivity to these functions or the
way in which allocation of responsibility for serving them is allocated
amongst the different courts in the judicial hierarchy. In the
traditional depiction, courts serve two primary purposes. The first is
dispute resolution. (80) It is hardly an overstatement to suggest that
the primary function of the American judicial system, at least in the
civil context, is to provide a peaceful means of resolving disputes.
(81) That, in turn, implies a concern with accurate resolution
(bracketing for now the question of precisely what "accurate"
means), for the simple reason that disputants will resort to the system
only if it generates results within some tolerable range of accuracy.
(82) The second purpose is the creation and refinement of legal
standards--the law declaration role. (83) As a result of institutional
design and justiciability rules, courts serve the law declaration
function almost exclusively as a byproduct of dispute resolution. (84)
Even so, these functions often pull in different directions, and it may
well be that the normative case for a generalist judiciary is stronger
with respect to one function. In similar fashion, the arguments apply
differently at each level of the judicial pyramid simply because the
functions are emphasized to differing degrees at each tier. (85) Trial
courts primarily serve the dispute resolution function, supreme courts
serve the law declaration function, and intermediate appellate courts
fall somewhere in the middle. (86)

There may be some aspects of the generalist/specialist divide that
will make one model or the other more (or less) suitable with respect to
both functions. Much of the case for specialization rests on the
assumption that specialists' greater subject-matter expertise
provides a comparative advantage in the fulfillment of both functions,
and that understanding seems to be at least partially accepted in the
literature. (87) In this depiction, the specialist will be better able
to cut to the heart of factual disputes and navigate complex doctrine.
This arguably allows the specialist to outperform the generalist with
respect to both functions. But this reasoning may be based on a
misidentification of the nature of the relevant expertise. The
specialist will have a greater familiarity with either or both of the
governing law and the factual context in which disputes arise. As noted
above, (88) however, substantive knowledge may not be the key to good
judicial decision-making. It may be, as explored below, (89) that
decision-making skill exists apart from substantive knowledge. There
could be, of course, a positive correlation between the two. But it
might also be the case that it is the generalist, with broad exposure to
a range of legal problems, who is best positioned to cultivate this sort
of expertise. or perhaps decision-making skill bears no necessary
relation to the presence or absence of concentrated substantive
knowledge.

Although the literature has focused primarily on whether
specialized courts and judges will generate better decisions measured in
substantive terms, it is worth considering whether there are likely to
be differences in the processes by which those courts and judges go
about their jobs that might manifest themselves in other aspects of
their output. (90) one might imagine, for example, differences between
the two regimes in terms of how broadly the average judge in each
searches for the information used to decide a case. It could be that, on
average, generalists and specialists will differ in terms of the extent
to which they are willing to seek information about a case beyond what
the parties have put before them, to base decisions on such information,
and more generally to draw on background information and intuitions they
bring with them to a case.

Such potential differences in style hearken back to the distinction
between the fox and the hedgehog. Dan Farber and Suzanna Sherry have
made an analogous point in the context of gauging the effects of
political ideology, arguing that current judicial selection processes

diminish the likelihood of appointing foxes rather than hedgehogs.
The stronger the commitment to a particular ideology, the less open
a judge will be to other perspectives. Instead of focusing on
ideological commitment, then, presidents and senators should be
looking for evidence of the dispositional traits that have been
shown to enhance judgment and good decision making. We should be
seeking an openness to other perspectives, a willingness to revise
one's views in the face of new information, and a refusal to adopt
a single approach to decision-making. (91)

It seems to be a plausible hypothesis that generalists will, on
average, tend more toward the intellectual humility characteristic of
foxes than will specialists, for the simple reason that one seems more
likely to have embraced a big idea that will apply to a large number of
cases if one operates within the narrow confines of a specialty than if
one hears a variety of cases. (92) But any such effect also seems likely
to be context-dependent. Within the context of a routine case, for
example, the specialist might be willing to account for a greater range
of information in her decision making, while the generalist would tend
to base her decision on the factors expressly identified in the
governing legal standard. In less-routine cases, the effect may run in
the opposite direction. In such cases it seems plausible that
generalists will be more fox-like than specialists and more open to a
broad array of information (at least in the sense that they will be
relatively less likely than the specialist to have precommitted to a
view of the subject matter or relevant subparts thereof).

I want to emphasize that I do not mean to foreclose consideration
of the possibility that the differences will break out in different
ways, or even that there will be no differences at all. The point of the
exercise is not to generate confident conclusions, but instead to
articulate potential consequences of the choice between generalism and
specialism that have been overlooked or glossed over in past
discussions. The next two subparts represent an effort to continue the
exploration by focusing on the dispute resolution and law declaration
roles.

A. Generalist Judges and Dispute Resolution

The argument for a generalist judiciary seems somewhat weaker
within the context of the dispute resolution function. The judicial role
in fulfilling this function is, of course, often limited. At the trial
court level, judges occasionally serve as factfinders, but more often
serve the dispute resolution function by narrowing the scope of the
dispute presented to a jury through various rulings at and before trial.
At the appellate level, the dispute resolution function (which is often,
and in my view misleadingly, referred to as the error correction
function) involves primarily the resolution of disputes over legal
questions. (93)

As noted above, assessment of whether a particular regime is
"better" at dispute resolution requires agreement on the
metric by which to assess quality, which leads quickly into contested
territory. (94) Even so, it seems safe to imagine that expert judges
will generate better decisions at least in the sense that other experts
will regard them as such. one might even provisionally accept that the
decisions will be in some ultimate sense more just. Both phenomena seem
likely to be products of specialists' proclivity to assess a given
situation by reference to a greater range of features than the
generalist, or even doctrine, is likely to account for. The tax court
judge, for example, may be able to appreciate the connections between
pieces of a transaction in ways that a generalist cannot and, as a
result, be led to rule on a dispute in a way and for reasons that are
neither evident to the generalist nor clearly incorporated into the
governing legal standard. At least in the short term, then, the
increased accuracy in the two senses just identified may come at the
expense of accuracy as measured by a formalist expectation that judicial
decisions are to conform to rules of law. (95) Generalist judges, in
contrast, are more likely to dispense justice that is relatively rough
and rule-based. The generalist will be comparatively (and perhaps even,
in some cases, absolutely) unable to appreciate the nuance and
complexity of the factual situation or legal framework, and thus more
inclined to rely on previously articulated legal standards to guide
resolution. There is some empirical support for the assertion that
judges who are experts in a given subject matter will implement rules
applicable to their decision making differently than their non-expert
counterparts. (96)

In this regard, it may be helpful to consider Karl Llewellyn's
distinction between "paper rules" and "real rules."
(97) Paper rules are those included in the governing precedent or
statutory text. Real rules are those that describe the actual manner in
which official actors address the relevant category of behavior.
Frederick Schauer illustrates the distinction by way of a simple
example. In the case of a speed limit, the paper rule may be that
vehicles may travel no faster than 65 miles per hour, while the real
rule is that drivers will not be sanctioned unless they exceed 74 miles
per hour. (98) Such a real rule may be tethered to the paper rule to
some degree, but must also be the product of something else, which
likely includes "the regularities of craft, of acculturation, and
of judges because of their craft often having a shared sense of the
purpose of some area of law." (99) Those forces are apt to operate
more strongly upon the specialist than the generalist. Thus, a court of
specialized, expert judges seems more likely to develop real rules that
depart from the paper rules generated by legislatures or higher
generalist courts. Generalists, in contrast, will not be as subject to
the influence of these other factors, and will thereby be more inclined
to decide according to the paper rule. Note that this does not mean
there will be greater regularity in the decisions of the generalist
court or that its decisions will be more rule bound. If the "shared
sense of purpose" and other determinants of the real rule are
sufficiently strong, the decisions of the specialist court might well be
more predictable (to the properly informed observer) than those of the
generalist court.

The difference can be characterized in yet another way. The
difference between generalist and specialist judges echoes the
differences between rules and standards. (100) Generalist judges will
consistently find themselves adjudicating cases as to which they lack
both an expert's grasp of the situation and a firm sense of the
background principles that ought to govern. They may thus be more
inclined to rely on rules--in the form of relatively strict adherence to
statutory language and precedent--where they are available. The
specialist, in contrast, will be better situated to appreciate how this
case differs from past cases, and to have a sense for whether those
differences ought to be regarded as consequential in light of her
understanding of the purposes of the law (even if, and perhaps
particularly if, the differences in question are not accounted for under
the articulated legal standards that govern the case).

Yet even if one accepts the suggestion that a specialized judiciary
will generate better results, at least in terms of the dispute
resolution function, there are other factors to consider. Accuracy,
however assessed, is not the only end of adjudication. (101) There are
process values that must be accounted for as well. In this regard, the
specialized adjudicator will be less able to fulfill the role of the
detached, reactive, neutral, "umpire" judge than her
generalist counterpart. Because she possesses greater knowledge about
the context in which the dispute arose and the governing legal
framework, she is more likely to develop preconceptions regarding its
proper resolution, and thus to be a more active participant in the
litigation than what the canonical version of the adversary system calls
for. (102) Under some conceptions of the judicial role, this stepping
out of the umpireal posture itself undercuts legitimacy. (103)

One might also suggest that it is inappropriate to isolate dispute
resolution in this way. That is, the exercise of the law declaration
function (to which I will turn next) to some degree depends on the
appropriate contemporaneous exercise of the dispute resolution function.
(104) If the facts of the dispute have not been adequately
found--something that requires judicial input either as factfinder or as
trial supervisor--then there will be an insufficient foundation based on
which to use the case as a vehicle for making appropriate law. Usually
this lack of foundation will not present a problem. The appellate court
will create law on the assumption that the dispute as presented to it
accurately reflects the underlying facts and dispute, and issue its
ruling as if that were so. The concern would arise in situations where
the underlying facts were systematically skewed by the trial-level
judiciary (whether generalist or specialist) in a way that in turn leads
to the skewing of the law. What could conceivably result is a body of
law based on an inaccurate understanding of the way the world that it
governs works.

B. Generalist Judges and Law Declaration

It seems reasonable to suspect that the law created by generalist
and specialist judiciaries will differ along at least three dimensions:
content, form, and stability. of these, content is probably the easiest
to appreciate. As developed above, (105) the case for specialized courts
proceeds to a considerable degree from the understanding that they will
generate different, and in the proponent's estimation better, law
than generalist courts. Anticipated differences in content, then, are
not merely a consequence but rather one of the aims of specialization.
Beyond that, all that it seems possible, in the abstract, to say about
the content of law generated by specialized courts is that it is likely
to conform more closely to what experts in the field--or at least some
subset of experts in the field--deem appropriate.

One can engage in considerably more speculation about potential
differences in form. Start with the proposition that judicial lawmaking
as a process relies to a large degree on the finding of
"legislative facts." Legislative facts are not the facts of
the immediate dispute before the court (the "adjudicative
facts"), but rather the sorts of background understandings--of how
the world works in general and in the specific type of situation before
the court, how people and institutions respond to incentives, and so
forth--that underlie conclusions about the content of the best rule of
law for a specific situation. (106) Members of specialized judiciary
confronted with an opportunity to make law are likely to reach different
conclusions about applicable legislative facts than would their
generalist counterparts for reasons that track those affecting their
respective factfinding abilities. As a group, such judges will have
greater familiarity with the relevant subject area, and most likely
greater expertise, and as a consequence are likely to have a different
understanding of the background against which they are making law than
would generalists.

Not only is the specialists' understanding likely to differ
with regard to its content, it is also likely to be qualitatively
different in a sense independent of content. The most likely difference
will be in its particularity. The specialist is likely to regard more of
the features of the factual landscape surrounding a given dispute as
constituting appropriate inputs for reaching a "just"
resolution of that dispute. This, in turn, will have the likely result
of making the legal rules generated by specialist judiciaries less
categorical. Put differently, just as there may be echoes of the
distinction between rules and standards when it comes to dispute
resolution, (107) so might specialized courts create more standards and
fewer rules than would the generalist judiciary (and if they do not,
there may be greater variance between the paper rules and the real rules
because of the play of expertise in the context of adjudicative
factfinding).

Some recent Supreme Court cases may illustrate this dynamic. One
frequent criticism of the Court in recent years is that, because of the
justices' backgrounds, they lack an appropriately nuanced
understanding of what takes place at the trial level (or perhaps more
generally of how the law operates "on the ground"). (108) As a
result, this critique continues, the Court is prone to generating
decisions that articulate bright-line rules that prove to be unworkable
in practice. The treatment of the interaction between hearsay and the
Confrontation Clause in the Court's opinion in Crawford v.
Washington (109) provides one example. In Crawford, the Court, in an
opinion authored by Justice Scalia, adopted a seemingly bright-line test
that turns on the "testimonial" nature of a hearsay statement.
(110) A number of commentators reacted to the case by noting the
practical difficulties it would create. (111) Subsequent opinions
suggested that the line was nowhere near as bright as it first appeared.
(112) And the Court's recent decision in Michigan v. Bryant, (113)
in which a majority of the Court concluded that a gunshot victim's
statements to police concerning the identity of the shooter were non
testimonial, prompted a dissenting Justice Scalia to characterize the
Court as "the obfuscator of last resort." (114) Part of the
point I am striving to make here is akin to Dan Farber's case
against certain types of legal scholarship. (115) Farber's
suggestion was that law itself is not (or at least ought not to be)
"brilliant" in the sense that it is susceptible to
unconventional, paradigm-shifting insights for the simple reason that
law values predictability and stability, and thus is inherently
incompatible with brilliance. (116) The point does not transfer
completely, as brilliant legal scholarship of the sort Farber targeted
tends to be more startling and novel than most judicial decisions, even
the innovative ones. But I have a sense--which conversations with my IP
colleagues regarding the Federal Circuit seem to confirm--that
specialist judges will be more inclined to strive for something like
brilliance and innovation than generalists. (117)

One might also hypothesize that generalist judges will--again, on
average--generate law that is more understandable than will specialists.
In part, this is a function of capacity. If a generalist judge lacks the
ability to appreciate the intricacies of a situation in the way that an
expert can, then he will likewise be unable to account for that
intricacy in the law that he creates. on the other side, the specialist
will often succumb to the tendencies toward jargon and "inside
baseball" that seem to afflict experts of every stripe. Such
judges, after all, will be writing largely for specialized audiences,
and thus may feel less need to write their decisions in a manner that a
lay audience can understand.

In a related vein, some have argued that the law created by
generalist judges is likely to be more stable than that created by
specialized courts. Judge Posner suggests that divisions in ethical,
political, and economic thought among specialists would be more likely
to lead to volatility in law. This volatility could occur in two ways:
through the operation of internal court dynamics, or via external
pressures. First, there is the likelihood that "experts are more
sensitive to the swings in professional opinion than an outsider, a
generalist, would be." (118) Not only are experts perhaps more
susceptible to faddishness than generalists at the individual level, but
there is arguably also a greater potential for any given trend to take
hold within a specialized judiciary. This is function of both size and
geography. Specialized courts are likely to be smaller and more
geographically concentrated than generalist courts, both of which are
factors that may make it easier for a single way of thinking to take
hold over an entire court. (119) The monopolization of viewpoint is, in
turn, likely to create a tendency for courts to make more questions
legal. Put differently, a specialized court seems more likely to
allocate the power to decide certain issues to itself rather than to
juries. (120) Second, specialized courts are likely to be more
susceptible to external pressures. (121) A smaller portion of the
citizenry is likely to be interested in such a court, meaning that a
relatively small number of interest groups are likely to play a
significant role in the selection process. In addition, a specialized
court presents an easier target for the political branches. On the
whole, then, a generalist judiciary seems likely to be more independent
(and less accountable, in at least some senses of judicial
accountability) than a specialized court. This is not to suggest that
generalist courts are immune from the sorts of external pressures that
generate volatility. As Peggy Davis' study of courts' use of
psychological parent theory revealed, generalist judges and courts are
often too willing to accept theories from other disciplines without
sufficiently careful consideration. (122)

As the discussion in the preceding paragraph suggests, the presence
of specialized courts seems to create greater potential for
balkanization. This can occur in two ways. The first comes with respect
to the resolution of problems common to both specialized and generalist
courts, such as those relating to procedure. As specialist courts
develop their own culture, there is an increasing chance that they will
resolve these common questions in a materially different manner than
their generalist counterparts. Although there will almost always be a
generalist court at the top of the judicial pyramid with responsibility
for policing uniformity, it is unrealistic to assume that such a court
will be able to monitor the courts underneath it closely enough to
ensure full uniformity. Indeed, it may be that the court of
discretionary jurisdiction will tend to defer to the specialized court.
(123) The second is more dramatic. over the long term, one might expect
to see at least some specialized bodies of law continue a path of
separate development to such an extent that they become not merely
different legal dialects, but completely distinct languages.

It bears mention again that the analysis in this subpart is
necessarily speculative and provisional. It represents an effort to
anticipate ways in which the processes and outputs of specialist and
generalist judiciaries might differ, and suggestions as to what the
content of those differences might be. The point is primarily to
identify the considerable work that remains in order for us to
understand the tradeoffs involved in any move toward specialization. A
considerable amount of both theoretical and empirical exploration will
be necessary to our understanding. The next Part, which draws on
psychological research on expertise, serves as an example of one type of
analysis and investigation that remains.

Ill. The Psychology of Expertise

As the preceding discussion revealed, the existing literature on
judicial specialization generally fails to grapple in depth with the
nature of the expertise that specialized judges or courts might possess.
As it happens, psychologists have conducted a considerable amount of
research into the nature of expertise, and this part explores the
implications of that work for judicial specialization. As the discussion
will reveal, the psychology of expertise remains a field in development,
such that one must resist the temptation to draw firm conclusions from
it. This is doubly so because none of the work has focused on judging,
and very little of it has addressed the possibility or parameters of
decision-making expertise. As a result, the discussion that follows will
serve not as the basis for broad prescriptive claims, but rather as a
source for critical assessment of prior assertions about the nature of
judicial expertise, the identification of factors relevant to the design
of specialized courts, and facilitating the generation of informed
hypotheses that might be tested in future work.

A. Defining the Concept of "Expertise"

There are at least two approaches one can take to defining the
concept of expertise. The first, which I will call the relative
approach, conceives of expertise in terms of relative knowledge levels.
(124) On this view, an expert is simply someone who knows more about the
topic at hand, and expertise is a relative rather than an absolute
characteristic. Thus, for example, in any group there will be
individuals recognized as the best people to consult in order to solve a
specific problem, whether it is the best place to order a pizza from or
how to interpret an x-ray. (125) Whenever someone is in position to
provide useful information to another, that person counts as an expert
relative to the person seeking the information. The implications of this
approach extend beyond such situational happenstance and into what are
typically regarded as fields of expertise. One such implication is that
status as an expert is not limited only to those fortunate enough to
have some necessary combination of talent and drive, but is also open to
novices who devote the time necessary to acquire the requisite
knowledge. (126)

A second approach to expertise, which I will call the qualitative
approach, regards it as involving the crossing of a qualitative
threshold. This approach presupposes that there is a
phenomenon--"expertise"--that exists apart from mere knowledge
of a subject matter. One of the premises underlying this vein of
research exploring expertise is that there are psychological
similarities amongst different kinds of experts, ranging from elite
athletes to the proverbial rocket scientists and brain surgeons, which
can be isolated and assessed. (127) on this view, expertise exists as a
characteristic that is distinct from both generalized talent or
intelligence and a long tenure of experience in a given subject matter.
As one psychologist put the matter, "[e]xperts certainly know more,
but they also know differently." (128) Note that, in addition to
the divide between the two approaches, there is also the potential for a
divide over whether these approaches can coexist. one might regard both
conceptions of expertise as legitimate, or one might deny either the
status of relative experts as true experts or the existence of experts
who possess qualitatively superior expertise.

While this second approach regards expertise as distinct from
subject-matter knowledge, the concepts nonetheless remain connected. As
the idea is typically phrased, expertise is domain-specific. (129)
Contrary to the common perception that expertise is merely the product
of some general underlying talent, research reveals that basic measures
of intelligence do not do well as predictors of the development of
expertise in a given domain. (130) Just as Michael Jordan's talents
on the basketball court did not carry over to the baseball diamond, so,
too, might the elite philosopher make only an average lawyer, and vice
versa. (131) Thus, the difference between experts and novices reflects
not merely the presence of similar skills in greater amounts, but also
the possession of different (though surely overlapping) skill sets the
expert acquired along his lengthy journey to that status.

The nature of that journey is a significant factor. It is not
enough, in order to become the sort of expert who "knows
differently," simply to accumulate experience within a domain.
Doing so will, to be sure, lead to improved skills, as common experience
suggests that almost anything becomes easier upon repetition. But for
most people, the accrual of experience leads to a plateau of acceptable
performance beyond which additional experience does not result in
improvement. (132) At that point, performance is likely to remain
constant, or even decrease, with subsequent experience unless the
aspiring expert engages in deliberate efforts to improve performance.
(133) Further improvement requires a program of deliberate, structured
practice, in which participants focus on systematically identifying and
eliminating shortcomings, and obtain feedback that allows them to refine
their performance. (134) Research suggests that, as a general matter,
ten years of experience involving this sustained devotion to improvement
is required to reach the highest levels in a domain. (135) on this
conception, expertise stands as something of an absolute and the
category of experts includes only truly exceptional individuals within a
given area. (136)

None of the above discussion is to suggest that innate talent or
intelligence is irrelevant. Two relevant subcomponents of general
intelligence are fluid intelligence--reasoning ability in its general
form--and crystallized intelligence, which concerns "the possession
and use of knowledge to solve problems." (137) Domains will differ
in the extent to which fluid intelligence is utilized in the exercise of
expertise. For some skills, such as the repetitive motions involved in
swinging a golf club or shooting a basketball, fluid intelligence comes
into play only at the learning stage. (138) Others, "such as the
analogical reasoning typical of the law, involve varied mappings, the
development of mental models of a situation, and extensive
knowledge." (139) For these skills, fluid intelligence remains
important, and the development of expertise involves not pure automation
of the relevant conduct, but rather "requires the development of
schema that can guide problem solving. To some extent the use of such
schema can reduce the burden on working memory, thus shifting the
balance between" fluid and crystallized intelligence. (140)

It is one thing to say what expertise is, and another to identify
those who qualify as experts. of course, under a view of expertise as
merely involving the possession of relatively more knowledge, the task
requires nothing more than a contextual assessment of comparative
knowledge levels. But if one takes a qualitative approach, the task can
become more difficult, depending on the nature of the underlying domain.
Some provide objective criteria. Sports are perhaps the most obvious
example, but the dynamic exists in any domain in which it is possible to
demonstrate consistently superior performance, such that the novice
observer can appreciate the presence of expertise. (141) But few fields
of human endeavor are susceptible to such easy assessment. In other
domains, "it is difficult for non-experts to identify experts, and
consequently researchers rely on peer-nominations by professionals in
the same domain." (142)

B. The Mechanisms and Effects of Expertise

Unsurprisingly, perspectives on the mechanisms through which
expertise manifests itself depend on which approach to defining
expertise one takes. under a relative approach, the thought processes of
experts differ from novices only in degree. The expert has a greater
store of knowledge to draw on, and perhaps has structured the knowledge
in a more effective way. (143) Novices may need to devote more of their
attention to the rules of a game or other basic information. In time,
however, that information becomes internalized and automatically
accessible, enabling cognitive resources to be focused elsewhere. (144)
Beyond that, however, the manner in which information is retrieved,
processed, and implemented is the same as is true for novices. For those
who regard expertise as existing only in a relative form, efficiency is
the sole reason for bringing expertise to bear on a problem. As Harald
Mieg puts the point, "[t]he core of the expert's role consists
of providing experience-based knowledge that we could attain ourselves
if we had enough time to make the necessary experience." (145)

Research conducted under the qualitative approach, in contrast,
suggests that experts go about their tasks in a manner that is
qualitatively different from novices. In part, this may be because they
do, in fact, "think differently" from novices. "For
example, they might utilize more powerful domain-general heuristics that
novices are not aware of, or they may be naturally endowed with greater
memory capacity." (146) The differences are also attributable to
the different knowledge structures developed by experts. (147) To
simplify, novices tend to see trees, while experts see forests. Relative
to novices, experts organize information into units that are larger in
scope, deeper in reach, and conceptually more abstract. (148) Presented
with a problem, experts are able to see more features, and better
appreciate its "deep structure," than are novices. (149) This
places experts in a better position to access, assess, and implement
their accumulated knowledge in a manner appropriate to the situation
presented. (150) Research suggests, for example, that expert and novice
chess players looking at the same chessboard see different things. (151)
The novice sees a collection of pieces, while the expert sees a
collection of relationships among pieces.

The expert's ability to peer more deeply into problems can be
both a blessing and a curse. As a general matter, experts are more able
than novices to engage in metacognition--reflecting on, and critically
assessing, the nature of their own thinking about a problem or
situation--which in turn puts them in a better position to recognize
when what they face is nonroutine and to make adjustments in response.
(152) Even within an expert's home domain, however, there lies the
potential for overconfidence and the tendency to overlook the details of
a situation. (153) Moreover, the scale of experts' knowledge
structures can sometimes inhibit their ability to appreciate when the
deep structure of a problem differs from what is typical in the domain,
which might in turn limit their ability to fashion non-standard
solutions. (154)

Those limitations aside, experts tend to produce superior results
for many kinds of tasks. "Experts excel in generating the best
solution, such as the best move in chess, even under time constraints,
or the best solution in solving problems, or the best design in
designing a task." (155) Part of this may be a function of
experts' ability to avoid falling prey to the sorts of cognitive
biases that skew much human thought away from the ideal of rationality.
(156)

C. Expertise and Creativity

The relationship between expertise and creativity remains murky,
with competing strands of research articulating contrasting--though
perhaps ultimately compatible--perspectives. One view holds that
expertise fosters, and indeed is necessary for, creativity. (157) From
this perspective the primary driver of creative thought is the
possession of a comprehensive knowledge of the relevant domain, which
allows the actor to generate novel solutions to problems based on a full
appreciation of the key components of that situation and the larger
context in which it arises. (158) What appears to the outside observer
to be a creative "leap" involves instead the expert
appreciating the connections between the various components of her
knowledge base. The advanced chess player, able to appreciate the
position of the pieces on the board at a greater level of abstraction than the novice, will naturally be able to see effective moves that the
novice will be unable to anticipate and may even perceive as
counterintuitive. In similar fashion, an advanced engineer will be
relatively more able than a novice to connect seemingly distinct strands
of knowledge to solve a problem.

The second view regards expertise and the logical application of
expert knowledge as hindrances to creative thought. (159) For example,
Dean Keith Simonton suggests that while a baseline amount of
domain-specific expertise is necessary for creativity, formal training
that extends beyond that level can have a negative effect. (160) From
this perspective, the expert stands as too much of an insider, someone
whose thought patterns will be filled with preconceived notions arising
out of the received wisdom. The relative novice, in contrast, is not
shackled by dominant approaches, and is therefore more likely to be open
to considering, and giving effect to, new ways of thinking about
problems. Indeed, Simonton asserts that creativity is fostered not by
intense focus on a single domain, but rather through exposure to, and
work in, different genres and methodologies. "These effects are
analogous to overtraining and crosstraining in sports. Creativity is
nurtured by crosstraining and hindered by overtraining. It is more
crucial for knowledge to be broad than deep." (161)

D. Decision-making Expertise

As Frank Yates and Michael Tschirhart point out, researchers and
laypeople alike tend to assume that those with subject-matter expertise
will consequently make superior decisions within their domain of
expertise. (162) There is undoubtedly a necessary connection between the
two, in that one cannot effectively make decisions within a domain
without at least some baseline level of substantive knowledge. (163)
Yet, they argue, "[e]quating decision-making and subject-matter
expertise effectively assumes that there is no such thing as
decision-making expertise per se." (164) on this view,
decision-making constitutes a subset of the larger phenomenon of problem
solving, with a "decision" defined as "a commitment to a
course of action that is intended to yield results that are satisfying
for specified individuals." (165)

Research exploring the possibility of decision-making expertise is
underdeveloped, and is hampered in part by the difficulty involved in
measuring the quality of a decision. One perspective focuses simply on
the results produced by decisions. (166) Another focuses more on
process, on the theory that decisions are made in the face of
uncertainty, such that their consequences can be affected by events that
cannot be anticipated or controlled. (167) This latter view recognizes
that even what counts as the best possible decision, given the
information known at the time, could turn out to have bad results. There
is, of course, a further complication in that observers will often
disagree about the relative desirability of decisional outcomes, whether
actual or anticipated. (168) Yates and Tschirhart suggest that the
"implicit subjectivity" of decision problems "represents
a significant and challenging departure from most expertise scholarship,
which prizes unambiguous performance criteria." (169) This, coupled
with the likely operation of cognitive biases in the process of
determining who counts as an expert, (170) leads them to conclude that
"our assumptions about who is or is not a decision-making expert
might not be as good as we hope." (171)

In an effort to advance the inquiry, Yates and Tschirhart outline
what they call the "process-decomposition perspective," in
which they break the process of making a decision into its components.
Their underlying assumption is that "[i]f each element is executed
well, this should contribute significantly to the adequacy of the
resulting decision." (172) They identify ten "cardinal
issues" that "arise repeatedly in real-life decision
problems." (173) Several of these appear to play an especially
significant role in judicial decision-making. The "options"
element concerns the decider's ability to recognize the
alternatives available. (174) The goal is not simply to maximize the
number of options under consideration, but to achieve an optimum balance
of quantity and quality. Here they recognize a connection with the
research on creativity "since, by definition, highly creative
individuals are especially good at crafting new and useful
alternatives." (175) Another element--the "possibilities"
element--concerns the ability to anticipate the outcomes that might
follow from various courses of action. (176)

Having identified the options and recognized the possibilities, a
decision maker must make a prediction concerning the most likely result
associated with choosing an option. This, Yates and Tschirhart refer to
as "judgment"--"an opinion as to what was, is, or will be
the state of some decision-relevant aspect of the world." (177)
They note that this aspect of decision-making has been addressed by more
previous work than any other element they identify. (178) "And the
most consistent expertise conclusion has been this: Subject matter
experts often exhibit much worse judgment accuracy than most people
expect." (179) Yates attributes this in part to the existence of
two fundamental types of judgment processes. The first,
"formalistic procedures," "are similar to the application
of rules such as those in probability theory or regression
analysis." (180) The second, which he calls "substantive
procedures," "entail the person attempting to envision how
'nature' literally would (or would not) create the event in
question." (181) While substantive reasoning can be quite powerful,
its nature encourages overconfidence and error.

To a considerable degree, phenomena affecting decision-making
expertise track those concerning expertise more generally. Expert
decision makers take more features of a situation into account, and
represent that information to themselves in a different way, than
novices do. (182) As experience within a domain increases, decision
makers organize the features of a situation into chunks that are
increasingly large and increasingly linked. (183) Although here, too,
the line dividing those with expertise from those who are merely
experienced is unclear, research suggests that "[e]xperts make
distinctions that novices or experienced nonexperts ignore." (184)
"Also, novices' representations of alternatives will remain
closely tied to the information that is explicitly presented.... In
contrast, the representations that eventually develop in experts'
minds will be in terms of higher-level, more abstract principles or
concepts...." (185) Finally, expert decision makers will be faster,
reaching a stage at which "the task changes to one of
classification rather than true decisionmaking." (186)

E. Expert Political Judgment

A final body of research that bears consideration is Philip
Tetlock's work on expert political judgment. (187) Tetlock's
project was, in effect, to attempt to isolate the components of
"good political judgment," and he did so primarily by getting
experts to make predictions about future states of the world and then,
over time, assessing whether those predictions came true. The entire
undertaking is, as he readily acknowledges, a slippery task, in large
part because disagreements turn on more than ascertainable factual
claims. Instead, they involve "hard-to-refute counterfactual claims
about what would have happened if we had taken different policy paths
and on impossible-to-refute moral claims about the types of people we
should aspire to be--all claims that partisans can use to fortify their
positions against falsification." (188) While Tetlock acknowledges
the impossibility of eradicating all the subjectivity from the inquiry,
he maintains that it is possible to assess them by reference both to the
correspondence between experts' predictions and reality and to the
coherence of the processes by which they approach the task. (189)

Tetlock concluded that, overall, experts' judgment was not
good. As he puts it, "[h]umanity barely bests the chimp."
(190) "[V]ariation in forecasting skill is roughly normally
distributed, with means hovering not much above chance and slightly
below case-specific extrapolation algorithms." (191) Tetlock found
that demographic and life-history factors bore very little relationship
to forecasting success. "It made virtually no difference whether
participants had doctorates, whether they were economists, political
scientists, journalists, or historians, whether they had policy
experience or access to classified information, or whether they had
logged many or few years of experience in their chosen line of
work." (192) Nor did ideology or other factors relating to
worldview or disposition correlate with forecasting success. (193)

What did matter, Tetlock found, was the process by which experts
approached the predictive task. Drawing on Isaiah Berlin's famous
foxhedgehog distinction, (194) he found a "dimension [that] did
what none of the measures of professional background could do:
distinguish observers of the contemporary scene with superior
forecasting records, across regions, topics, and time." (195)

Low scorers look like hedgehogs: thinkers who 'know one big thing,'
aggressively extend the explanatory reach of that one big thing
into new domains, display bristly impatience with those who 'do not
get it,' and express considerable confidence that they are already
pretty proficient forecasters, at least in the long term. High
scorers look like foxes: thinkers who know many small things
(tricks of their trade), are skeptical of grand schemes, see
explanation and prediction not as deductive exercises but rather as
exercises in flexible 'ad hocery' that require stitching together
diverse sources of information, and are rather diffident about
their own forecasting prowess, and... rather dubious that the
cloudlike subject of politics can be the object of clocklike
science. (196)

Looking beyond the simple fox-hedgehog divide, Tetlock found that
"hedgehog extremists making long-term predictions in their domains
of expertise" were the worst performers. (197) The best were
"foxes making short-term predictions within their domains of
expertise." (198) In all, he concludes that "the performance
gap between foxes and hedgehogs... is statistically reliable, but the
size of the gap is moderated by at least three other variables:
extremism, expertise, and forecasting horizon." (199)

Tetlock reasons that these results are consistent with other
research on cognition. Hedgehogs, he suggests, "bear a strong
family resemblance to high scorers on personality scales designed to
measure needs for closure and structure--the type of people who have
been shown in experimental research to be more likely to trivialize
evidence that undercuts their preconceptions and to embrace evidence
that reinforces their preconceptions." (200) Hedgehog experts
perform especially poorly because their expertise better equips them to
discount contrary evidence as well as to characterize evidence as
bolstering their beliefs. Extremism magnifies the effect. (201)
Meanwhile, foxes are more self-critical and more inclined to anticipate
criticism from others, and consequently more likely to give due
consideration to all information that bears on their position. (202) For
foxes, expertise pays dividends, since it enhances their ability to
assess all information. In all, Tetlock's use of both quantitative
and qualitative methods led him to conclude that "[f]oxes have
better judgment than hedgehogs." (203) Foxes are not great at it,
falling well short of statistical forecasting models, but they do manage
to avoid the big mistakes that afflict hedgehogs. Foxes' success,
he concludes, arises out of their "more balanced style of thinking
about the world--a style of thought that elevates no thought above
criticism." (204)

IV. Judging, Expertise, and the Rule of Law

The scope of our legal system, and thus of the matters that courts
must adjudicate, is vast. A recent volume of West's Northwestern
Reporter includes cases concerning subjects as varied as insurance,
(205) probate, (206) procedural due process, (207) investigative stops,
(208) attorney discipline, (209) divorce, (210) involuntary commitment,
(211) workers' compensation, (212) freedom of information, (213)
governmental immunity, (214) unemployment compensation, (215) contracts,
(216) the Indian Child Welfare Act, (217) expert witness testimony,
(218) medical malpractice, (219) civil rights, (220) secured
transactions, (221) taxation, (222) and on and on. Each of these cases
was decided by a generalist court, and for most it is easy to appreciate
the allure of the suggestion that a court specialized in the area would
have been able to grapple more easily with the case. Tax codes and other
complex statutory schemes, to take just one example, do not often
readily reveal their nuances to the occasional user. Those who work with
them learn how the pieces fit together, and where the tensions,
inconsistencies, and gaps are. It seems intuitively correct, then, that
such judges would reach substantively better conclusions than their
generalist peers.

But consideration of the psychology of expertise should give us
pause. As outlined above, American courts serve two functions, dispute
resolution and law declaration, which are differentially distributed
throughout the institutional hierarchy. (223) And, again, the quality of
a judicial decision will often be a contestable matter. (224) This plays
out somewhat differently in the two contexts. Questions of dispute
resolution have theoretically correct answers--what the contract
requires, whether the defendant was negligent, whether the trial court
properly instructed the jury, and so forth. It is sometimes possible to
detect error--such as when DNA evidence proves that a defendant was
wrongly convicted--but neither consistently, nor reliably. An assessment
of the relative qualitative performance of specialized courts is thus
theoretically possible, but practically difficult. With respect to the
lawmaking function, the question of quality lacks even these benchmarks.
Measured by content, at least, there is no objective standard by which
to say one is better than another. The question of whether
specialization will result in better decisions, measured in terms of
their content, is thoroughly value-laden.

One lesson to be drawn is that law is a field in which there is no
clear means of establishing who counts as an expert. It is easy to rank
tennis and chess players, and not much more difficult to do so with
pitchers and quarterbacks. When it comes to judges, however, there is no
common metric even for generalists. (225) To the extent it makes sense
to distinguish between expert and nonexpert judges (as opposed to, say,
regarding all or most judges as experts in some more general domain such
as legal reasoning), the distinctions must necessarily be the product of
rough consensus. As Yates and Tschirhart point out, such consensus is
likely to arise out of a flawed process, fraught with cognitive bias.
(226) And as the preceding parenthetical suggests, the analysis must
confront the domain-specific nature of expertise. The domains in which a
judge works might plausibly be defined broadly, such as legal reasoning
or legal decision-making, or narrowly, such as tax law or evidentiary rulings. Mid-level domains might include fact-finding,
rule-identification, and the crafting and refinement of legal standards.
A given judge might be skilled along one or some combination of these
dimensions. And even a judge on a specialized court will have to
adjudicate questions outside her specialty. Bankruptcy judges, for
example, do not simply consider questions under the Bankruptcy Code, but
instead "hear disputes from across the legal spectrum, confronting
matters sounding in contract, tort, property, labor, and almost every
other area of civil law." (227) If the bankruptcy judge is said to
have a domain of expertise, then, it may be in a process rather than a
subject matter. (228)

Whatever the domains of expertise that judges may possess, the
architecture of the American judiciary suggests that any gains resulting
from expertise are almost certain to be of the efficiency rather than
qualitative sort. Even if one accepts the proposition that there exists
a form of expertise in which its holders cross some threshold that
enables them to make qualitatively better decisions, (229) and that law
(or some parts of law) is a discipline in which that sort of expertise
is attainable, the processes of judicial selection are unlikely to
provide us with a judiciary that possesses that sort of expertise. Part
of the problem is with the pool. The practice of law as generally
undertaken does not reliably involve the sorts of processes necessary to
cross the threshold. Lawyers who accrue experience in a given specialty
are apt to reach a plateau of acceptable performance and remain there.
(230) Law practice does not mimic the sort of deliberate, structured
practice necessary to continue to advance one's abilities. The
fortunate lawyer will have senior colleagues who, through the early
years of her career, provide feedback on her work. But even this largely
disappears after a few years, at which point her feedback will come from
results and the reactions of her clients and peers, all of which is
unstructured and sporadic. Her development does not parallel that of the
professional athlete, whose entire career is overseen by coaches charged
with identifying areas for improvement and developing plans to achieve
it. The lawyer's expertise is therefore likely to be a relative
expertise. She will have been in a similar situation before, and thus
will not have to expend time and energy wading through caselaw or a
statutory scheme, or familiarizing herself with the processes by which
the governing legal standards are implemented. But, she will often not
have a good sense of whether her approach in those past situations was
as effective as it could have been or of specific ways she should
proceed differently this time.

A specialized court or judge's expertise will likewise be
relative. Just as there is nothing about the practice of law that
ensures the development of qualitative expertise, neither does the role
of judge involve incremental increases in the difficulty or complexity
of the cases one must decide. Indeed, the small amount of empirical
research bearing on differences between generalist and specialist judges
is consistent with this suggestion. (231) The specialized court is
therefore likely not to produce greater insight in some absolute sense,
but rather roughly equivalent insight more quickly. As Yates and
Tschirhart reveal, the subject-matter expert may have a comparative
advantage in terms of identifying decisional options, but this does not
inevitably translate into superior judgment. (232) Tetlock's work
reinforces this conclusion, suggesting that it is cognitive style rather
than expertise that drives decisional quality. (233) The gains that
result will not be negligible. A judge in familiar territory will
undoubtedly be able to decide cases more efficiently than one who must
make some degree of acquaintance with the subject matter with each new
case. But it is important to recognize that any preference for a regime
of specialists must be based on an accounting that considers both
decisional quality and the amount of time that must be invested in each
decision. There is, in other words, no assurance that the
specialist's decisions will be qualitatively better (assuming,
again, some agreed metric for assessing quality) than the
generalist's, especially removing time and resource constraints
from the analysis.

Of course, quality measured by content or result is not the only
aspect of judicial decision making to be accounted for in making the
choice for or against specialization. Indeed, the focus might more
profitably be on process differences between the two types of regimes
rather than on substance. In this view, the focus would be on whether
there are meaningful differences between the two regimes in terms of the
manner in which judges operating in them go about making decisions, or
differences in the manner in which those decisions are implemented or
articulated. (234) Such differences, of course, might in turn affect
decisional content in systematic ways. As the research on
decision-making suggests, an approach focused on process may be superior
to one focused purely on result. (235) But, as the procedural justice literature demonstrates, (236) there are senses apart from content in
which process is consequential. We might as a society desire a system in
which courts are responsive to parties, where decisions track governing
law, or where there are more rules than standards, to a greater extent
than we would value any specific content of rules.

Tetlock's revelation that cognitive style seems to drive
decision making points the way to another possibility, which is that of
devoting efforts to creating judicial processes that mimic fox-like
cognitive styles. Adversarialism performs this function to some degree,
ensuring that courts receive at least two perspectives on an issue. That
benefit may be lost, however, if judges reach a point where they are
merely categorizing rather than considering (237) the alternatives, and
as a consequence, achieving a meaningful impact on cognitive style might
require strengthening the effects of adversarialism. (238) In the
context of multi-member courts, generalism might provide an advantage by
increasing the likelihood of the need to accommodate divergent
perspectives on a panel. Others have proposed similar mechanisms to
ensure ideological diversity on panels. (239)

There is a final set of concerns. The strongest arguments for a
generalist judiciary seem to require the acceptance of a certain
conception of law, and in turn of the judicial role. Stated simply, the
conception of law that seems to underlie the generalist judiciary is one
in which law strives to be something of a common language. (240) There
are at least two ideas at work here. One is that the expertise relevant
to judging exists at a similarly broad level. In that view, the key is
not expertise in or familiarity with the particulars of, say, tax law
that matters, but rather an advanced ability to deploy the tools of
legal analysis. The second idea extends beyond the act of judging to the
impact of that act on the relationship between the law and those who are
governed by it. It goes beyond the notion of a government of laws and
not of men to the suggestion that legitimacy entails a government of
laws that can be understood and adhered to by more-or-less ordinary
people. The generalist judiciary can further these goals not only by
preventing the sort of balkanization that is likely to occur if separate
judiciaries have responsibility for their own areas of law, but also by
serving as a more general barrier to needless technicality and
complexity in the law. The presence of the generalist effectively
requires specialist lawyers to translate their arguments into the common
language of the generalist, which in turn facilitates the generality of
law. This barrier provided by the generalist is hardly impermeable. It
is not difficult to find examples of needless technicality and
complexity in the law created by generalists. Nonetheless, one can
easily imagine generalism serving as an antidote to some of the more
severe pathologies that might afflict the law under a regime based more
on specialization.

This conception of law appears to be consistent with most theories
of legality. A prominent example is Lon Fuller's list of eight
requirements for the "inner morality of law:"

[T]he attempt to create and maintain a system of legal rules may
miscarry in at least eight ways; there are in this enterprise, if
you will, eight distinct routes to disaster. The first and most
obvious lies in a failure to achieve rules at all, so that every
issue must be decided on an ad hoc basis. The other routes are: (2)
a failure to publicize, or at least to make available to the
affected party, the rules he is expected to observe; (3) the abuse
of retroactive legislation, which not only cannot itself guide
action, but undercuts the integrity of rules prospective in effect,
since it puts them under the threat of retrospective changes; (4) a
failure to make rules understandable; (5) the enactment of
contradictory rules or (6) rules that require conduct beyond the
powers of the affected party; (7) introducing such frequent changes
in the rules that the subject cannot orient his action by them;
and, finally, (8) a failure of congruence between the rules as
announced and their actual administration. (241)

Of course, whether a generalist judiciary truly is more effective
than a specialized judiciary in satisfying Fuller's requirements
presents an empirical question as to which one can presently offer only
speculation. As outlined more fully in Part I, one can make a plausible
argument that generalist courts populated by generalist judges will do a
better job, relative to the alternatives, of satisfying requirements one
(achievement of rules), four (making rules understandable), five
(avoiding contradiction), seven (maintaining consistency), and eight
(maintaining congruence between rules and their administration). Insofar as it is appropriate to conceive of specialist judges as possessing some
form of expertise, such effects might result because the experts are (at
least implicitly) following rules that are more complex than, and
somewhat counter to, the governing doctrine as it has been articulated.
(242) Or it may be that the experts are more broadly, and less tangibly,
assigning value to more data points in reaching a decision than the
applicable rules provide for, and thus deciding according to some
intuitive assessment of the equities. (243) Either way, such results
would be in tension with Fuller's requirements. Rules of law
created by generalists might typically resemble the decisional processes
of novices in taking account of the more apparent features of a
situation. To the extent that rule-ness is desirable, that will be a
plus. The law declared by specialists, in contrast, is likely to be less
precise, in the sense of being rule-like and generalizable, than that
declared by generalists.

It is also worth considering the possibility that research
exploring creativity and decision-making expertise captures what
qualitative approaches to expertise regard as constituting the
difference between experts and novices. The qualitative expert may be
one who has the knowledge base of a relative expert (to a high degree),
and who has also developed a sort of process-based facility, whether it
be creativity, decision-making skill, or the sort of superior cognitive
approach outlined by Tetlock. The situation becomes even more complex
when one attempts to apply it to the judicial role. our society is
ambivalent about the desirability of judicial creativity. on the one
hand, a creative judiciary might be viewed as an important--perhaps even
necessary--source of solutions to pressing social problems. (244) In
similar fashion, judicial creativity might be applied to the resolution
of discrete disputes between litigants as to which formal law provides
little guidance. (245) on the other hand, a judge who reaches a creative
result might be accused of acting contrary to the institutional logic of
the adversary system, which relies upon and must be responsive to the
parties' conception of their disputes. (246)

More broadly, a creative judicial decision seems more likely to be
regarded as one that is insufficiently deferential to the political
branches or otherwise of the sort susceptible to the amorphous but
undoubtedly pejorative "judicial activism" label.

The entire inquiry into the relative merits of specialization
vis-a-vis the rule of is subject to a possible qualification: Embedded
within this discussion is a conception of law as necessarily consisting
of a unified whole, which must collectively satisfy these requirements.
Having a common language is important only if there is some commonality
to the tasks in which all lawyers and judges are engaged. If, on the
other hand, criminal law and patent law and workers compensation law and
so forth are sufficiently different in a qualitative sense, then this
unified conception of law may be erroneous. on that view the better
approach would be to discard the notion of "law" as inherently
including common threads that run through all these areas and instead
having distinct bodies of law each of which should be assessed by
Fuller's criteria. In this latter world, there may be benefit to
not having them share a common language, in which case many of the
arguments for a generalist judiciary as I have defined it would fall
away. (247)

Conclusion

It would be ironic, to say the least, were I to conclude an article
that draws heavily on research touting the cognitive prowess of
Berlin's foxes by offering confident solutions. Attempts to import
the findings of psychological research into the legal system are always
tricky, (248) and doubly so when that research itself leads to no easily
delineated conclusions. The standard admonitions against the incautious importation of the results of psychological experimentation into
"real world" settings take on additional salience when the
setting is one in which there are conflicting views as to the ultimate
goals to be achieved. Courts and law serve multiple, often incompatible,
ends. Though the conclusions must therefore necessarily be modest and
qualified, they are nonetheless significant. Determining whether
judicial specialization makes sense in any given context is a
considerably more complex question than most previous analyses have
allowed for. And claims that expertise necessarily translates into
superior decision-making are likewise subject to considerable
qualification, if they are not outright suspect.

Questions of specialization and expertise exist throughout society,
as debates over the wisdom of specialization in medicine and academia
attest. They also exist throughout law. The psychology of expertise has
implications not merely for judging, but also for the design and
operation of institutions and roles like administrative agencies and
expert witnesses. My analysis suggests that it may be appropriate to
revisit those contexts as well.

(1.) The phenomenon of the expert in a narrow field, or
"technocrat," is hardly new.

The increasing complexity of production systems, managerial
decision-making, and military preparedness has made the technical
expert, with his esoteric knowledge, a key figure in our society.
Even the realm of political decisions has become so overwhelmed
with information, study groups, and research reports that
legislation and political decisions have come under the influence
of the expert.

(2.) See, e.g., Lawrence M. Friedman, Heart Against Head: Perry
Miller and the Legal Mind, 77 Yale L.J. 1244, 1249 (1968) (noting that
"[n]o lawyer could grasp the whole of the legal system because the
system became simply too big" and attributing the system's
bulk primarily "to population growth, economic development, and
social diversity"); Deborah L. Rhode, The Profession and Its
Discontents, 61 Ohio St. L.J. 1335, 1337 (2000) ("In many fields of
law, increasing complexity has encouraged increasing specialization.
Lawyers know more and more about less and less, and their intellectual
horizons have correspondingly narrowed.").

(4.) Judicial specialization is, to a degree, the product of the
same factors driving specialization throughout society. Yet, as Lawrence
Baum has argued, on the whole "the movement toward greater judicial
specialization has been a product of inadvertence rather than
design." Lawrence Baum, Specializing the Courts 5 (2011). Baum
concludes that the primary driver of specialization is "an interest
in shaping the substance of judicial policy." Id. at 207. Pressures
toward increased specialization are likely to be a product of caseload
pressures as well. The business of the judiciary has increased in
quantity to the point where adherence to all the adjudicative procedures
of an earlier era is, as a practical matter, impossible. Courts have
implemented a number of reforms to address these volume-related
problems, including (at the appellate level) curtailment of oral
argument and the widespread use of so-called "unpublished
opinions." See generally, e.g., Thomas E. Baker, Rationing Justice
on Appeal: The Problems of the U.S. Courts of Appeals (1994); William M.
Richman & William L. Reynolds, Elitism, Expediency, and the New
Certiorari: Requiem for the Learned Hand Tradition, 81 Cornell L. Rev.
273 (1996). The nature of judging at the trial court level has likewise
changed, as evidenced by "the vanishing trial" and the rise of
managerial judging. See Marc Galanter, The Vanishing Trial: An
Examination of Trials and Related Matters in Federal and State Courts, 1
J. Empirical & Legal Stud. 459 (2004); Judith Resnik, Managerial
Judges, 96 Harv. L. Rev. 374 (1982).

(5.) Richard A. Posner, The Role of the Judge in the Twenty-First
Century, 86 B.U. L. Rev. 1049, 1050 (2006).

(10.) Baum's recent book is an important exception. He
expressly acknowledges that "[t]he effects of specialization may be
contingent on variables such as the specific form that specialization
takes in a particular court, the other attributes of a court, and the
conditions under which the court does its work." Baum, supra note
4, at 40.

(11.) We might imagine that American judges have always been
generalists--that in some relatively broad sense they were required and
prepared to adjudicate any dispute governed by law. That is undoubtedly
accurate as a depiction of what the American judiciary has looked like
through most of our nation's history. For much of our nation's
history, there simply was not that much law, and as a consequence it was
not unrealistic to expect an individual to gain mastery over all of it.
Judge Friendly used this observation as the basis for the suggestion
that law professors might be better suited to the bench than practicing
lawyers.

[W]hereas it was not unreasonable to expect a judge to be truly
learned in a body of law that Blackstone compressed into 2400
pages, it is altogether absurd to expect any single judge to vie
with an assemblage of law professors in the gamut of subjects,
ranging from accounting, administrative law and admiralty to water
rights, wills and world law, that may come before his court. Even
the most experienced twentieth century judge, as he pirouettes
among all these topics, must often feel himself a proper target for
Dr. Johnson's shaft--'It is not done well; but you are surprised to
find it done at all.'

Friendly, Reactions, supra note 9, at 220 (quoting Boswell, Life of
Johnson 287 (Everyman's ed. 1925)). Of course, the focus of the
typical law professor has shifted considerably since the time that
Friendly wrote, such that he would likely not view the matter in
precisely the same way were he writing today. His point about the wide
array of subjects confronting the judge still stands.

Even so, while the term nowadays connotes the lack of
specialization characteristic of judges on courts of general
jurisdiction, our casual acceptance of that role as a natural baseline
overlooks a struggle earlier in our history over the nature of law and
judging. See John H. Langbein, Chancellor Kent and the History of Legal
Literature, 93 Colum. L. Rev. 547, 566 (1993) (describing the struggle
in the early years of the American republic between those hostile to
legal doctrine and the professionalization of law and "those who
understood that the intrinsic complexity of human affairs begets
unavoidable complexity in legal rules and procedures"); see also
Charles H. Sheldon, Due Process and the Lay Judge, 21 Law &
Soc'y Rev. 793 (1988). The very fact that professional training is
a prerequisite to most judicial positions represents the privileging of
one form of generalism over another. Specialization, in turn, can take
various forms as one further narrows the scope of a judge's
responsibility away from the open subject matter of the legal
generalist. Specialization can occur at varying breadths. A business
court would arguably be less specialized than a patent court and a
criminal court less so than a family court.

There is something of a temporal component to specialization as
well. No judge on a generalist court begins his judicial career as a
generalist in the sense that he has equal familiarity with the subject
matters underlying all the disputes he will be required to adjudicate,
and most such judges likely come to the bench from a relatively
specialized practice that has provided no exposure to many subjects. one
consequence is that the judges on generalist courts are arguably not
generalist judges to the extent that the court's jurisdiction would
imply, although with respect to individual judges the phenomenon becomes
less pronounced over the course of a career. Another is that a certain
amount of de facto specialization takes place on generalist courts,
whether by the happenstance of a trial judge getting a case in an area
in which she has experience or the more intentional practice of a judge
on an appellate panel being assigned to write the opinion in a case as
to which she has experience. See generally Edward K. Cheng, The Myth of
the Generalist Judge, 61 Stan. L. Rev. 519 (2008).

(12.) In a sense, the difficulty begins with the concept of a
judge, a term that connotes not some unified and uniform role, but
rather one with varied responsibilities occupied by people with a wide
array of qualifications and experience. See Helen Hershkoff, State
Courts and the "Passive Virtues": Rethinking the Judicial
Function, 114 Harv. L. Rev. 1833, 1914 (2001) (footnote omitted)
("[T]he judicial function... exemplifies an 'essentially
contested concept' that requires normative and institutional
articulation. How we choose to define that institution depends on our
collective commitments and our resolved needs...."). There are, to
take just one example, considerably more non-lawyer judges in the United
States than most observers are likely to be aware of. See Nigel J.
Cohen, Nonlawyer Judges and the Professionalization of Justice, 17 J.
Contemp. Crim. Just. 19, 1920 (2001); Cathy Lesser Mansfield, Disorder
in the People's Court: Rethinking the Role of Non-Lawyer Judges in
Limited Jurisdiction Court Civil Cases, 29 N.M. L. Rev. 119 (1999). And
in the case of multi-member courts, it may make sense to draw a
distinction between the court and the individual judges on it, in the
sense that the attributes of a collection of judges may amount to more
(or less) than the sum of its parts. Cf. Adrian Vermeule, The Judiciary
is a They, Not an It: Interpretive Theory and the Fallacy of Division,
14 J. Contemp. Legal Issues 549 (2005).

(13.) As a descriptive matter, state appeals court judges probably
come closest to pure generalism, but even they are precluded from
hearing disputes within the exclusive jurisdiction of the federal
courts.

(14.) See Damle, supra note 9, at 1277. For proposals for such
courts, see, e.g., Ad Hoc Committee on Business Courts, Business Courts:
Towards a More Efficient Judiciary, 52 Bus. Law. 947 (1997); Victor
Williams, A Constitutional Charge and a Comparative Vision to
Substantially Expand and Subject Matter Specialize the Federal
Judiciary: A Preliminary Blueprint for Remodeling Our National Houses of
Justice and Establishing a Separate System of Federal Criminal Courts,
37 Wm. & Mary L. Rev. 535 (1996).

(15.) "Most commentators treat the concepts of expert and
expertise as non-problematic. The concepts are presented as
predetermined, temporally and spatially stable, quite often obvious, and
even natural." Gary Edmond & David Mercer, Experts and
Expertise in Legal and Regulatory Settings, in Expertise in Regulation
and Law 1 (G. Edmond ed., 2004).

(16.) "I accept unreservedly that our judges are
specialized--to judging.... [T]he judge will have a skill at judging
that comes from long practice in evaluating arguments of counsel,
decisions of trial judges, and trial records, and that skill is a
legitimate fruit of specialization in the function of appellate
judging." Posner, The Federal Courts, supra note 9, at 248-49.

(17.) By which I mean simply that it would apply to the act of
judging regardless of variation in subject matter, size, or other aspect
of the case. Cf. Stephen M. Subrin, The Limitations of Transsubstantive
Procedure: An Essay on Adjusting the "One Size Fits All"
Assumption, 87 Denv. U. L. Rev. 377, 377-78 (2010) (defining
transsubstantivity in procedural rules, then outlining and critiquing
the case for it).

(18.) See infra notes 76-79 and accompanying text.

(19.) See Edmond & Mercer, supra note 15, at 2 (elaborating on
the assertion that "[q]uestions around what counts as expertise and
who is an expert need to be examined in context").

(20.) Friendly, Averting the Flood, supra note 9, at 639.

(21.) See Jordan, supra note 9, at 747.

(22.) See Baum, supra note 4, at 33 (identifying expertise as one
of the "neutral virtues" associated with specialization, and
contrasting it with efficiency). "When commentators speak of
judicial expertise as something more than a source of efficiency, what
they really mean is that expert judges will produce higher-quality
decisions than nonexperts." Id.

(23.) Cheng, supra note 11, at 524; see also Lawrence Baum, Probing
the Effects of Judicial Specialization, 58 Duke L.J. 1667, 1676 (2009)
("What commentators generally mean when they talk about expertise
seems to be the possibility that expertise will enhance the quality of
court decisions: more expert judges, who know more about the field in
which they are deciding cases, are more likely to get decisions
right.").

(29.) See, e.g. , Andrew W. Jurs, Science Court: Past Proposals,
Current Considerations, and a Suggested Structure, 15 Va. J.L. &
Tech. 1, 5-16 (2010) (surveying the history of proposals for science
courts); Ad Hoc Committee on Business Courts, Business Courts: Towards a
More Efficient Judiciary, 52 Bus. Law. 947, 951 (1997) (referring to
both complexity in "real-life social and economic activity"
and complexity in legal doctrine as justifications for the creation of
business courts).

(30.) of course, efficiency-based justifications for specialization
overlap to some extent with the expertise-based arguments. Judges who
are experts will be more knowledgeable about either the legal or factual
contexts in which cases arise and thus will be able to address them more
expeditiously. See Dreyfuss, Specialized Adjudication, supra note 9, at
378 ("If, as common experience suggests, experts are better than
laymen at dealing with matters in their special areas, the specialized
judiciary should handle cases more efficiently, thereby reducing the
number of judge-hours required to decide any given number of
cases.").

(31.) See, e.g., Michael C. Dorf & Jeffrey A. Fagan,
Problem-Solving Courts: From Innovation to Institutionalization, 40 Am.
Crim. L. Rev. 1501, 1501-02 (2003) (identifying three
"institutional imperatives" behind the rise of drug court: (1)
docket pressures created by the war on drugs; (2) the perception
"that the crush of drug cases led to a crisis in the courts;"
and (3) judges' dissatisfaction with limitations placed on their
sentencing discretion).

(35.) Posner, Will the Federal Courts of Appeals Survive, supra
note 9, at 762. Note that this conclusion is not universally accepted.
See generally, e.g., William M. Richman & William L. Reynolds,
Elitism, Expediency, and the New Certiorari: Requiem for the Learned
Hand Tradition, 81 Cornell L. Rev. 273 (1996) (arguing that suggested
difficulties associated with expanding the size of the federal judiciary
are overblown).

(36.) See supra note 5 and accompanying text.

(37.) See, e.g., Rifkind, supra note 9, at 425 ("In time such
a body of law, secluded from the rest, develops a jargon of its own,
thought-patterns that are unique, internal policies which it subserves
and which are different from and sometimes at odds with the policies
pursued by the general law.").

(38.) Jordan, supra note 9, at 748.

(39.) See supra note 37.

(40.) Baum refers to this in terms of "assertiveness":

Specialized judges who come to a court with experience in the
subject matter of their court's work or who develop that experience
as judges can be expected to feel greater confidence in their
judgment than their generalist counterparts. Because of this
confidence, they are likely to be more assertive than generalists
in their policymaking.

Baum, supra note 23, at 1677.

(41.) "Cross-pollination among legal theories is a significant
source of change in the law since important patterns of reasoning
sometimes emerge rather naturally in one field, yet can be meaningfully
applied to other areas." Dreyfuss, Specialized Adjudication, supra
note 9, at 379.

(45.) The implications of this are less than clear. As Davis points
out, the background understandings that judges bring to the
determination of adjudicative facts will often be outcome-determinative.
Id. at 1549. This can put parties lacking the resources or expertise to
contest background understandings at a disadvantage, an effect that is
likely to be greater in litigation before a generalist court because it
will be more difficult to predict the background understandings of
generalist courts as a general matter. While the background
understandings of specialists are perhaps more likely to be deeply held,
and thus more difficult to move, they will at least be more predictable,
such that litigants will have notice that they ought to address them.

(46.) See infra Part II.B

(47.) See infra text accompanying notes 83-88.

(48.) As one commentator has explained:

Because a federal judicial appointment represents a considerable
financial sacrifice for top lawyers, its appeal must lie in its
prestige and in the opportunity it offers to enhance the
development of the law. The prestige of a federal judicial
appointment has necessarily declined inversely to the number of
authorized positions.

The federal courts play their role as a buffer between the
political branches and the citizen more effectively when they are
composed of generalists than when they are composed of specialists.
A generalist court provides some insulation; a specialist court is
apt to be a superconductor. Specialists are more likely than
generalists to identify with the goals of a government program,
since the program is the focus of their career. They may therefore
see their function as one of enforcing the law in a vigorous rather
than a tempered fashion. In this respect the case for a generalist
federal judiciary resembles the case for the jury--not despite, but
because of, its lack of expertness.

Posner, Will the Federals Court of Appeals Survive, supra note 9,
at 785.

(54.) Id. at 786.

(55.) For example, in an effort to determine whether there was any
substance to the notion of a "Greenhouse effect" (that is,
drift toward liberalism due to press coverage) on Supreme Court
justices, Lawrence Baum studied justices who were appointed by
Republican presidents since 1953 and served for at least ten years. He
found the evidence to be "for the most part... consistent with the
claims of a Greenhouse effect. Among the nine Republican justices who
moved to Washington to join the Supreme Court, there were clear and
substantial increases in liberalism for four and more limited or
ambiguous increases for three others." Lawrence Baum, Judges and
Their Audiences: A Perspective on Judicial Behavior 149 (2006).

(56.) See Donald D. Landon, Country Lawyers: The Impact of Context
on Professional Practice 128-29 (1990); Herbert M. Kritzer & Frances
Kahn Zemans, Local Legal Culture and the Control of Litigation, 27 Law
& Soc'y Rev. 535, 546 (1993).

(57.) See Posner, Will the Federal Courts of Appeals Survive, supra
note 9, at 780.

(65.) The reference, of course, is to the distinction popularized
by Isaiah Berlin.

For there exists a great chasm between those, on one side, who
relate everything to a single central vision, one system, less or
more coherent or articulate, in terms of which they understand,
think and feel--a single, universal, organising principle in terms
of which alone all that they are and say has significance--and, on
the other side, those who pursue many ends, often unrelated and
even contradictory, connected, if at all, only in some de facto
way, for some psychological or physiological cause, related to no
moral or aesthetic principle. These last lead lives, perform acts
and entertain ideas that are centrifugal rather than centripetal;
their thought is scattered or diffused, moving on many levels,
seizing upon the essence of a vast variety of experiences and
objects for what they are in themselves, without, consciously or
unconsciously, seeking to fit them into, or exclude them from, any
one unchanging, all-embracing, sometimes self-contradictory and
incomplete, at times fanatical, unitary inner vision. The first
kind of intellectual and artistic personality belongs to the
hedgehogs, the second to the foxes....

Isaiah Berlin, The Hedgehog and the Fox: An Essay on Tolstoy's
View of History, reprinted in The Proper Study of Mankind 436, 436-37
(Henry Hardy & Roger Hausheer eds., 1999).

(66.) One commentator has explained:

It is sometimes true that purposes are not hard to discern. But in
difficult, controversial cases ... there is generally no consensus
regarding statutory purpose. Many statutes are compromises between
conflicting purposes; many are the product of overlapping purposes
that diverge in particular applications. often a statute enacted
for one purpose has unforeseen side effects. Indeed, when a case
goes to court, this is generally an indication that different
interests in society favor different understandings of purpose. It
is not often true that only one of these understandings is
reasonable.

(67.) Such expertise seems likely to play out in three ways: (1) as
expertise that will enable the judge to best make sense of the factual
aspects of a particular dispute; (2) as expertise that will enable it to
best make sense of the larger factual background and context in which
the legal framework operates (legislative fact expertise; the sort of
expertise that will facilitate the law declaration function); and (3) as
expertise with respect to the content of the existing legal framework
(e.g., complex regulatory schemes; this is the sort of expertise that
might be called error correction or evasion expertise). A generalist
appointed to a specialized court is likely to be able to acquire the
third kind, but not so easily the first and second.

(68.) See supra note 23 and accompanying text.

(69.) See infra notes 240-42 and accompanying text.

(70.) I am not the first to use the language metaphor. See
Friendly, Reactions, supra note 9, at 222 ("Any further development
of such exclusive specialized courts seems likely to be in areas where a
separate language is required--tax law, as it appears to some, because
of the intricacy of the legislation, or patents because of the
increasingly technical nature of some of the raw material.").

(71.) See Baum, supra note 4, at 210 ("To the extent that
participants in the policy-making process think explicitly about how
specialization might affect court outputs, they tend to act on the basis
of folk theories that rest on common-sense notions of causality rather
than on extensive and systematic analysis.").

(72.) See supra Part I.C.1.

(73.) See supra note 44 and accompanying text.

(74.) See supra notes 52-55 and accompanying text.

(75.) See Martin Shapiro, Courts: A Comparative and Political
Analysis 27 (1981).

(76.) See supra notes 57-62 and accompanying text.

(77.) See generally Lawrence B. Solum, Indeterminacy, in A
Companion to Philosophy of Law and Legal Theory 488 (Dennis Patterson ed., 1999). The problem of indeterminacy includes to a metaphysic component, which is implicated by the possibility of the lack of any
truly "correct" answers to some legal questions, and an
epistemic one, which relates to our inability to ascertain the right
answers to questions. See Ken Kress, A Preface to Epistemological Indeterminacy, 85 Nw. u. L. Rev. 134 (1990).

(78.) "There is almost always a zone of reasonableness within
which a decision either way can be defended persuasively, or at least
plausibly, using the resources of judicial rhetoric. " Posner,
supra note 5, at 1053.

(92.) "Specialized judges who are expert in the subject matter
of their court's work at the time they take their positions or who
develop that expertise through constant work in one field tend to feel
greater confidence in their judgment than their generalist counterparts.
Because of this confidence, they are likely to be more assertive than
generalists in their policy making." Baum, supra note 4, at 35.

(93.) See generally Oldfather, supra note 85.

(94.) See supra notes 78-81 and accompanying text.

(95.) To the extent that an expert judiciary updates the law to
account for this greater range of factors, it will introduce a set of
concerns addressed in the next part.

(96.) For example, Deborah Merritt and James Brudney found that
judges with practice experience relating to the NLRA published a lower
portion of their opinions than those who did not (the publication
decision being one governed by circuit rules). Deborah Jones Merritt
& James J. Brudney, Stalking Secret Law: What Predicts Publication
in the United States Courts of Appeals, 54 Vand. L. Rev. 69, 114-15
(2001). This research, of course, concerns judges with specialized
knowledge who serve on generalist courts, which is undoubtedly a
significant contextual factor, and thus any extrapolation from that work
to a more generic consideration of specialists versus generalists must
be undertaken with caution.

(100.) See Kathleen M. Sullivan, Foreword: The Justices of Rules
and Standards, 106 Harv. L. Rev. 22, 58 (1992) (contrasting rules with
standards, which "tends to collapse decisionmaking back into the
direct application of the background principle or policy to a fact
situation").

(101.) To take just one example, we also want a system in which
litigants feel as though they were given a fair hearing. See Tom R.
Tyler, Citizen Discontent with Legal Procedures: A Social Science
Perspective on Civil Procedure Reform, 45 Am. J. Comp. L. 871 (1997).

(102.) For an outline of a version of the canonical, reactive
judge, see oldfather, supra note 82, at 139-45.

(103.) Id. at 140 (describing Lon Fuller's participation
thesis).

(104.) See supra note 84.

(105.) See supra Part I.B.1.

(106.) The distinction between legislative and adjudicative
fact-finding originated with Kenneth Culp Davis, An Approach to Problems
of Evidence in the Administrative Process, 55 Harv. L. Rev. 364, 402
(1942).

(107.) See supra note 100 and accompanying text.

(108.) See, e.g., Arthur R. Miller, From Conley to Twombley to
Iqbal, 60 Duke L.J. 1, 86-87 (2010) ("The Justices do not have the
time, trial-court experience, or on-the-ground information to evaluate
the consequences that procedural changes may have on private enforcement
of substantive law or what alternative enforcement mechanisms should be
established if litigation pathways are impaired."); Cf. Hillel Y.
Levin, Iqbal, Twombley, and the Lessons of the Celotex Trilogy, 14 Lewis
& Clark L. Rev. 143, 156 (2010) ("[W]e should be wary of
drawing the conclusions that some have that the Supreme Court does not
understand trial court practice, or that we would be better off if there
were more Justices with trial court experience.").

(117.) But there is a counterpoint here. If, as I have suggested,
generalists will be more likely to engage in formalist reasoning, then
they can be led astray in a different way. Farber speaks to this, too.
"Lawyers are more impressed by experience than by logic in part
because they know perfectly well that any chain of argument has a weak
link.... [T]he sheer force of a complicated logical argument will (and
should) persuade people to adopt conclusions they regard as
ridiculous." Daniel A. Farber, Brilliance Revisited, 72 Minn. L.
Rev. 367, 373 (1987).

(122.) Davis, supra note 43, at 1593. "[T]he uses uncovered by
this study were often incautious. Courts have frequently accepted the
theory on the basis of one-sided presentations, rendering casespecific
results of its acceptance questionable. Developments in the law based
upon psychological parent theories have been far reaching, yet they too
have resulted from one-sided deliberations." Id. (footnotes
omitted). There might be a tie-in here to a larger point about the
tension (or perhaps even incompatibility) between law and science.

(123.) This was, at least initially, the Supreme Court's
stance vis-a-vis the Federal Circuit and patent law. See Peter Lee,
Patent Law and the Two Cultures, 120 Yale L.J. 2, 42-43 (2010).

(124.) Harald A. Mieg, The Social Psychology of Expertise: Case
Studies in Research, Professional Domains, and Expert Roles 2-9 (2001).

(125.) on this view, anyone can end up in a situation in which they
will function as an expert. "[T]he interaction involved in
consulting an expert or, respectively, being consulted as an expert is
based on a simple fact: There is somebody who seems to have knowledge
that someone else is in need of." Id. at 43.

(129.) This is a consistent theme of the literature. Id. at 47
("There is little transfer from high-level proficiency in one
domain to proficiency in other domains--even when the domains seem,
intuitively, very similar."). Domain-specificity necessarily
applies in the context of relative expertise as well. My being well
situated to tell others where to order a pizza does not mean that I will
be able to provide similar guidance with respect to sushi, or that I
would be properly regarded as the pizza expert in a different context.

(130.) See id.; see also Ericsson, supra note 127, at 10.

(131.) This is not to deny the existence of the occasional Bo
Jackson or Deion Sanders (both were dual-sport athletes), but only to
assert that they are rare.

There is a general belief that talented people display superior
performance in a wide range of activities, such as having superior
athletic ability and superior mental abilities. However, if we
restrict the claims to individuals who can perform at very high
levels in a domain, then it is clear that people hardly ever reach
an elite level in more than a single domain of activity.... There
is little transfer from high-level proficiency in one domain to
proficiency in other domains--even when the domains seem,
intuitively, very similar.

Feltovich et al., supra note 128, at 47.

(132.) Ericsson, supra note 127, at 13. "The path to expertise
is not fully monotonic. Plateaus are reached at which the person is
comfortable and confident. But it's necessary to move off such
plateaus to advance. This involves some discomfort and considerable
effort. It may involve unlearning some aspects of what brought one to a
comfort-level of expertise." John Horn & Hiromi Masunaga, A
Merging Theory of Expertise and Intelligence, in The Cambridge Handbook
of Expertise and Expert Performance 587, 601 (K. Anders Ericsson et al.
eds., 2006).

(133.) Feltovich et al., supra note 128, at 60.

(134.) See Horn & Masunaga, supra note 132, at 601; see also K.
Anders Ericsson, The Influence of Experience and Deliberate Practice on
the Development of Superior Expert Performance, in The Cambridge
Handbook of Expertise and Expert Performance 683, 692-94 (K. Anders
Ericsson et al. eds., 2006).

(135.) Id. at 689.

(136.) See Chi, supra note 126, at 22. Under this definition of
expertise, some of the understandings outlined in the preceding
paragraphs need to be qualified, for "there is a tacit assumption in the literature that perhaps these individuals somehow have greater
minds in the sense that the 'global qualities of their
thinking' might be different. For example, they might utilize more
powerful domaingeneral heuristics that novices are not aware of, or they
may be naturally endowed with greater memory capacity." Id.

(147.) "Expertise is appropriately viewed not as a simple (and
often short-term) matter of fact or skill acquisition, but rather as a
complex construct of adaptations of mind and body, which include
substantial self-monitoring and control mechanisms, to task environments
in service of representative task goals and activities." Feltovich
et al., supra note 128, at 57.

(148.) See Feltovich et al., supra note 128, at 50-53. "Human
information processing is limited to seven chunks at a time. By
chunking, human experts--in chess and other domains--are able to reduce
domain-specific information complexity. This ability is based on the
perception of domain-specific meaningful patterns. In other words,
experts see constellations." Mieg, supra note 124, at 20 (emphasis
in original).

(149.) Chi, supra note 126, at 23.

(150.) Feltovich et al., supra note 128, at 54-55.

(151.) J. Frank Yates, Judgment and Decision Making 373 (1990).

(152.) See id.; Chi, supra note 126, at 24 ("Experts have more
accurate self-monitoring skills in terms of their ability to detect
errors and the status of their own comprehension.").

(153.) Id. at 25.

(154.) Id. at 26-27.

(155.) Id. at 23.

(156.) Karol G. Ross et al., Professional Judgments and
"Naturalistic Decision Making," in The Cambridge Handbook of
Expertise and Expert Performance 403, 405 (K. Anders Ericsson et al.
eds., 2006) ("Many studies have found that when experts perform in
their domain in their natural context, bias is alleviated and experts
yield good judgments.").

(157.) For an overview, see Robert W. Weisberg, Expertise and
Reason in Creative Thinking, in Creativity and Reason in Cognitive
Development 7 (James C. Kaufman & John Baer eds., 2006).

(158.) Id. at 38 ("The creative thinker, no different from the
noncreative thinker, uses his or her knowledge to deal with the
situations he or she faces. The main difference between creative versus
noncreative thinkers is the knowledge they bring to a situation within
their area of expertise.").

(163.) "For instance, it would be impossible for a layperson who knows nothing about the law to consistently make decent legal
decisions on behalf of clients." Id.

(164.) Id.

(165.) Id. at 422.

There are several major decision varieties: 'choices,' which entail
the selection of a subset from a larger collection of discrete
alternatives (e.g., a class of ten new graduate students from a
pool of 100 applicants); 'acceptances/rejections,' which are
special cases of choices in which only one specific option (e.g.,
potential marriage partner) is acknowledged and must be accepted or
not; 'evaluations,' which are statements of worth that are backed
up by commitments to act (e.g., a $310,000 binding bid on a house);
and 'constructions,' which are attempts to create ideal decision
problem solutions given available resources (e.g., a department's
budget or plan for fighting a fire).

Id.

(166.) Id. at 423-24.

(167.) Id. at 424.

(168.) "The specification of beneficiaries [of a decision] is
critical, implicating what is arguably the single feature of decision
problems that distinguishes them more sharply from more general
problems--differences among people in the values they attached to
decision results." Id. at 423 (emphasis in original).

Clearly, a truly expert decider would be good at anticipating
possibilities. Yet, the possibilities issue as such has gone
largely untouched in decision research. Nevertheless, work framed
in other ways arguably has implications for it. This includes
research demonstrating people's difficulty even imagining the
sometimes bizarre behaviors of common real-life non-linear systems.

(193.) Id. at 71-72. He considered not only experts'
distribution along the traditional left-right spectrum, but also
institutionalists (those inclined toward faith in international
institutions) and realists (who were disinclined to subordinate national
interests to international institutions), and doomsters (who regard
ecosystems as fragile and have a generally pessimistic view of
humanity's ability to avoid a downward trajectory) and boomsters
(who believe in the tendency of ecosystems to rebound and human
ingenuity to resolve crises). Id.

(194.) See supra note 65.

(195.) Id. at 75.

(196.) Id. at 73-75.

(197.) Id. at 80.

(198.) Id. The quotes referenced in this and the preceding footnote
occur in the context of Tetlock's discussion of his calibration
measure. His discussion of his discrimination measure reveals a similar
dynamic.

(199.) Id. at 81.

(200.) Id.

(201.) Tetlock explains:

[T]he combination of a hedgehog style and extreme convictions
should be a particularly potent driver of confidence, with the
greatest potential to impair calibration and discrimination when
forecasters possess sufficient expertise to generate sophisticated
justifications (fueling confidence) and when forecasters make
longer-range predictions (pushing potentially embarrassing reality
checks on over-confidence into the distant future).

Id. at 82.

(202.) Id. at 82.

(203.) Id. at 117. Tetlock ultimately concludes that:

[I]t does sometimes help to be a hedgehog. Distinctive hedgehog
strengths include their resistance to distraction in environments
with unfavorable signal-to-noise rations; their tough negotiating
postures that protect them from exploitation by competitive
adversaries; their willingness to take responsibility for
controversial decisions guaranteed to make them enemies; their
determination to stay the course with sound policies that run into
temporary difficulties; and their capacity to inspire confidence by
projecting a decisive, can-do presence.

(228.) See id (emphasis in original) ("Bankruptcy may be a
specialized process, with its own rhythms that differ from litigation in
other forums, but the substance of bankruptcy cases is not
specialized.").

(234.) For example, Ori Aronson has recently argued that
specialization may promote democratic values. See Ori Aronson, Out of
Many: Military Commissions, Religious Tribunals, and the Democratic
Virtues of Court Specialization, 51 Va. J. Int'L L. 231 (2011). He
suggests that institutional heterogeneity may further democratic
deliberation by providing distinct institutional homes for different
voices and perspectives, enhance pluralism by ensuring "that
multiple normative visions are active and visible at all times[,]"
advance the cause of access to justice because different institutional
arrangements provide different sorts of avenues to reach the judiciary,
and enhance systemic transparency by "mak[ing] visible the
doctrinal, institutional, and ideological divisions and distinctions
that pervade the legal order." Id. at 265-71.

(235.) See supra note 167.

(236.) See Tyler, supra note 101.

(237.) See supra note 186 and accompanying text.

(238.) For example, we might consider implementing a "framing
arguments" mechanism, pursuant to which a change to the format of
judicial opinions--requiring that they include party-generated
statements of the issues--would encourage judges to be more responsive
to the parties. See Chad M. Oldfather, Remedying Judicial Inactivism:
Opinions as Informational Regulation, 58 Fla. L. Rev. 743 (2006).

Ideological tendencies, whatever they are, can be distorting. In
general, the existence of diversity on a three-judge panel is
likely to bring the law to light and perhaps to move the panel's
decision in the direction of what the law requires. The existence
of diverse judges and a potential dissent increases the probability
that the law will be followed. And even where the law is unclear,
it is valuable to have competing views about how it should be
understood.

(240.) The suggestion here is akin to James Boyd White's
characterization of law "as a language, as a set of ways of making
sense of things and acting in the world." James Boyd White, Justice
As Translation: An Essay in Cultural and Legal Criticism xiii (1990).
Thus:

In every opinion a court not only resolves a particular dispute one
way or another, it validates or authorizes one form of life--one
kind of reasoning, one kind of response to argument, one way of
looking at the world and its own authority--or another.... Much of
the life and meaning of an opinion (or a set of opinions) thus lies
in the activities it invites or makes possible for judges, for
lawyers, and for citizens; in the way it seeks to constitute the
citizen, the lawyer, and the judge, and the relations among them;
and in the kind of discoursing community it helps to create.

Id. at 101-02.

(241.) Lon L. Fuller, The Morality of Law 38-39 (1964). For a more
recent treatment of these ideas, see Scott J. Shapiro, Legality 392-98
(2011).

(242.) It is easy to appreciate how there might come to be a
mismatch between the levels of generality at which the legal standards
articulate the law and the depth at which a specialist analyzes it. A
statute or line of precedent will have been developed largely by
generalists. Even though subjectmatter experts often play a role, such
as in statutory advisory committees, the product will have been filtered
through the generalist lawmaker. The mere existence of that filter seems
likely to affect the work product of the specialist advisors, and the
lawmakers themselves are likely to modify what is proposed before it is
enacted. Thus, the rules and standards that result are likely to
identify a limited set of factors as appropriate for consideration,
while the specialist/expert will tend to look beyond that limited set of
factors to more deep structural considerations. See supra Part II.B.

(247.) Aronson suggests something along these lines: "The
concept of the 'court' as a solid, identifiable, coherent, and
persistent institutional entity is revealed to be obsolete. What most
states and countries have, in fact, is a profusion of courts--multiple,
diverse, and continuously changing devices of legal ordering and dispute
resolution." Aronson, supra note 234, at 297 (emphasis in
original).

(248.) See generally Gregory Mitchell, Why Law and Economics'
Perfect Rationality Should Not Be Traded for Behavioral Law and
Economics' Equal Incompetence, 91 Geo. L.J. 67 (2002).